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U.S. Customs and Border Protection◆

Slip Op. 09–105

UNION STEEL, Plaintiff, v. UNITED STATES, Defendant, and UNITED

STATES STEEL CORPORATION and NUCOR CORPORATION, Defendant-Intervenors.

Before: Timothy C. Stanceu, JudgeCourt No. 08–00101

[Affirming in part a final determination of the U.S. Department of Commerce andgranting defendant’s request for a partial voluntary remand]

Dated: September 28, 2009

Troutman Sanders LLP (Donald B. Cameron, Brady W. Mills, Jeffrey S. Grimson,Julie C. Mendoza, Rudi W. Planert, and Mary S. Hodgins) for plaintiff.

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, UnitedStates Department of Justice (Claudia Burke); Jonathan Zielinski and Daniel J.Calhoun, Office of the Chief Counsel for Import Administration, United States Depart-ment of Commerce, of counsel, for defendant.

Skadden Arps Slate Meagher & Flom, LLP (Ellen J Schneider, Jeffrey D. Gerrish,Jared R. Wessel, John J. Mangan, Robert E. Lighthizer, and Luke A. Meisner) fordefendant-intervenor United States Steel Corporation.

Wiley Rein, LLP (Timothy C. Brightbill, Alan H. Price, and Robert E. DeFrancesco,III) for defendant-intervenor Nucor Corporation.

OPINION AND ORDER

Stanceu, Judge:

I.Introduction

Plaintiff Union Steel (“Union”) contests the final determination(“Final Results”) issued by the International Trade Administration,U.S. Department of Commerce (“Commerce” or the “Department”), ina periodic administrative review of an antidumping duty order onimports of certain corrosion-resistant carbon steel flat products (the“subject merchandise”) from the Republic of Korea (“Korea”). SeeCertain Corrosion-Resistant Carbon Steel Flat Products from the Re-public of Korea: Notice of Final Results of the Thirteenth Admin.

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Review, 73 Fed. Reg. 14,220 (Mar. 17, 2008) (“Final Results”). Union,a producer and exporter of subject merchandise and a respondent inthe review, brings two claims. Union challenges Commerce’s “modelmatch” methodology, by which Commerce compared Union’s U.S.sales of painted corrosion-resistant carbon steel flat products toUnion’s home market sales, which included not only painted productsbut also “laminated” products, i.e., products that are coated with aplastic film rather than paint. Second, plaintiff challenges Com-merce’s construction of 19 U.S.C. § 1677(35) (2006), according towhich Commerce concluded that it was permissible to apply “zero-ing,” i.e., the deeming of the sales a respondent makes in the UnitedStates at prices above normal value to have individual dumpingmargins of zero rather than negative margins.

Without confessing error, defendant requests that the court order apartial voluntary remand to allow Commerce to reconsider its denial,made during the review, of plaintiff ’s request to revise the modelmatch methodology. Plaintiff responds that a remand on this issue isrequired but submits that the court, in issuing a remand order,should consider plaintiff ’s substantive arguments, make certain find-ings with respect to Commerce’s model match determination, andissue specific instructions governing the scope and substance of theremand redetermination. Defendant-intervenors Nucor Corporation(“Nucor”) and United States Steel Corporation (“U.S. Steel”) arguethat the Department’s model match methodology is supported bysubstantial evidence and otherwise consistent with law and, in thealternative, oppose the specific remand instructions sought by Union.For the reasons discussed herein, the court grants defendant’s re-quest for voluntary remand and declines to issue a remand order inthe form that plaintiff advocates.

Based on applicable precedent, the court affirms the Department’suse of zeroing in the Final Results. Accordingly, the court denies reliefon plaintiff ’s second claim.

II.Background

In September 2006, Commerce initiated the thirteenth administra-tive review of an antidumping duty order on certain corrosion-resistant carbon steel flat products from Korea for the period ofAugust 1, 2005, through July 31, 2006 (the “period of review”). Ini-tiation of Antidumping and Countervailing Duty Admin. Reviews, 71Fed. Reg. 57,465 (Sept. 29, 2006). In conducting the review, Com-merce sent Union and other respondents a questionnaire detailingtwelve model-match criteria, the first of which was termed “TYPE.”Letter from U.S. Dep’t of Commerce to Union Steel Manufacturing Co.,

22 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 43, OCTOBER 22, 2009

Ltd. (Sept. 13, 2006) (Admin. R. Doc. No. 7); Letter from U.S. Dep’t ofCommerce to Dongbu Steel Co., Ltd., App. IV at 1 (Sept. 13, 2006)(Admin. R. Doc. No. 9); Br. in Supp. of the Mot. of Pl. Union Steel forJ. upon the Agency R. 2–3 (“Pl.’s Br.”). The questionnaire listed fourpossible types of corrosion-resistant carbon steel flat products: (1)“Clad (metals bonded by the hot-rolling process), less than 3/16″ inthickness”; (2) “Coated/plated with metal: Painted, or coated withorganic silicate, Polyvinylidene Flouride (PVDF)”; (3) “Coated/platedwith metal: Painted, or coated with organic silicate, All Other (i.e.,other than PVDF)”; and (4) “Not painted, and not coated with organicsilicate.” Pl.’s Br. 3; Letter from U.S. Dep’t of Commerce to DongbuSteel Co., Ltd. at B–7 (Sept. 13, 2006); Letter from U.S. Dep’t ofCommerce to Union Steel Manufacturing Co., Ltd. (Sept. 13, 2006).Respondents were asked to classify their sales of subject merchandisemade during the period of review into one of these four types. Pl.’s Br.3; Letter from U.S. Dep’t of Commerce to Dongbu Steel Co., Ltd. at B–7(Sept. 13, 2006); Letter from U.S. Dep’t of Commerce to Union SteelManufacturing Co., Ltd. (Sept. 13, 2006).

During the period of review, Union did not have sales of subjectmerchandise that consisted of clad products but had sales in theUnited States and in Korea of unpainted products, products paintedwith PVDF, and products in the “All Other” painted category. Pl.’s Br.3. In addition, Union made sales in Korea of corrosion-resistant steelflat products that were laminated with a plastic film but had no salesof laminated products in the United States during the period ofreview. Id. at 3–4. In responding to Commerce’s questionnaire, Unionreported its sales based on the four types Commerce had describedbut also proposed, and reported sales based on, a product type notspecified in the questionnaire: “Coated/plated with metal: Laminatedwith film.” See Letter from Kaye Scholer LLP to Sec’y of Commerce,Attach. 1 at 5–6 (Nov. 20, 2006) (Admin. R. Doc. No. 52) (“Union’sSection B Resp.”); see also Letter from Kaye Scholer LLP to Sec’y ofCommerce, Attach. 1 at 20-21 (Feb. 2, 2007) (Admin. R. Doc. No. 99)(“Union’s Supplemental Resp.”). Union advocated that Commerce rec-ognize this proposed new type category by explaining that its lami-nated products underwent a different production process than itspainted products, were physically different from its painted productsbecause they were coated with plastic film and not with paint, andwere costlier than its painted products. See Union’s Section B Resp. 6;see also Union’s Supplemental Resp. 20–21.

In calculating Union’s antidumping duty margin for the prelimi-nary results of the administrative review, Commerce rejected Union’s


proposed new type category and grouped within the type category of“All Other” painted products the home market sales of productsUnion had categorized as laminated. Pl.’s Br. 5; see also Mem. fromCase Analysts, AD/CVD Operations, Office 3, to The File 4 (Aug. 31,2007) (Admin. R. Doc. No. 230). Using Union’s information groupedaccording to Commerce’s type categories, Commerce assigned Uniona preliminary antidumping duty margin of 4.35%. Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea:Notice of Prelim. Results and Partial Rescission of Antidumping DutyAdmin. Review, 72 Fed. Reg. 51,584, 51,588 (Sept. 10, 2007).

Commerce issued the Final Results of the thirteenth administra-tive review on March 17, 2008. Final Results, 73 Fed. Reg. 14,220. Asexplained in the Issues and Decision Memorandum (“Decision Memo-randum”) that was incorporated into the Final Results, Commerceonce again classified as “All Other” painted products the sales oflaminated subject merchandise that Union had proposed for a sepa-rate type category. See Issues and Decisions for the Final Results ofthe Thirteenth Admin. Review of the Antidumping Duty Order onCertain Corrosion-Resistant Carbon Steel Flat Products from the Re-public of Korea (2005–2006) (Final Results) 14–15 (March 10, 2008)(“Decision Mem.”); Final Results, 73 Fed. Reg. at 14,221 (adopting theDecision Mem.). Commerce also rejected an argument, made byUnion and by other respondents, that Commerce should cease “zero-ing” in its administrative reviews, including the current review. De-cision Mem. 3–5. Based on these decisions, Commerce assigned Uniona final antidumping duty margin of 4.35%. Final Results, 73 Fed. Reg.at 14,221.

In the instant action, Union advances two claims against theUnited States, Compl. ¶¶ 7–16, and moves for judgment upon theagency record pursuant to USCIT Rule 56.2. Pl. Union Steel’s Mot. forJ. upon the Agency R.; see also Pl.’s Br. Union’s first claim is thatCommerce failed to explain how the model match criteria utilized bythe agency could be reasonable or supported by substantial evidence.Compl. ¶¶ 15–16; see also Pl.’s Br. 13. Plaintiff ’s second claim is thatCommerce’s construction of 19 U.S.C. § 1677(35) to allow zeroing, asapplied in the subject review, is contrary to law. Compl. ¶¶ 7–14; Pl.’sBr. 29–39. Pursuant to plaintiff ’s motion, the court held oral argu-ment on April 24, 2009. Mot. for Oral Argument 1.

III.Discussion

The court exercises jurisdiction under 28 U.S.C. § 1581(c), pursuantto which the court reviews actions commenced under 19 U.S.C. §1516a (2006), including an action contesting the final results of an


administrative review that Commerce issues under 19 U.S.C. §1675(a) (2006). 28 U.S.C. § 1581(c) (2006). The court will uphold theDepartment’s determination unless it is unsupported by substantialevidence on the record or otherwise not in accordance with law. See 19U.S.C. § 1516a(b)(1)(B)(i).

A. A Voluntary Remand Is Appropriate to Allow Commerce toReview and Reconsider the Model Match Methodology It Ap-plied to Union’s Sales

In support of its first claim, plaintiff argues that laminatedcorrosion-resistant carbon steel flat products are distinct frompainted (both PVDF painted and “All Other” painted) corrosion-resistant carbon steel flat products with respect to cost, price, com-mercial identity, and use. See Pl.’s Br. 3–4, 16–29. Union points torecord evidence that its laminated products have physical propertiesthat cannot be achieved by painting, such as the unrestricted expres-sion of various patterns, superior durability, and the use ofenvironmentally-friendly material. Id. at 3. Citing these claimed dis-tinctions, plaintiff argues that Commerce’s classifying of the lami-nated products as “All Other” painted products is unsupported bysubstantial evidence of record. Id. at 14–29. According to Union,Commerce improperly relied on its analysis from the previous(twelfth) administrative review to justify grouping within the sametype category two distinctly different classes of products and failed toprovide an adequate explanation for its decision. Id. at 13, 20–23. Asrelief on its first claim, plaintiff proposed a remand to Commerce withinstructions that the agency revise the model match criteria to clas-sify laminated corrosion-resistant carbon steel flat products as aseparate product type. Id. at 40.

Nucor and U.S. Steel responded to plaintiff ’s brief by arguing thatthe court should uphold the model match methodology the Depart-ment applied in the thirteenth administrative review. Mem. in Opp’nto Pl.’s Mot. for J. on the Agency R. Filed by Def.-Intervenor UnitedStates Steel Corporation 14–27 (“U.S. Steel Resp.”); Resp. Br. ofNucor Corp. 7–17 (“Nucor Resp.”). Defendant, however, acknowledgesthat Commerce relied on the analysis applied in the twelfth admin-istrative review, rather than on data on the record of the subjectthirteenth administrative review, to justify use of its model matchmethodology. Def.’s Resp. to Pl.’s Mot. for J. upon the Agency R. 10(“Def.’s Resp.”). Defendant requests a partial remand “[t]o permitCommerce to consider Union Steel’s reported data during this admin-istrative review and to determine whether this reported data wouldjustify a revision in the model match methodology.” Id.


While favoring a partial remand to allow Commerce to reconsiderits earlier decision not to change its model match criteria, Union alsorequests that the court “first consider Union’s arguments prior toremanding the case” and “instruct Commerce as to the appropriatecriteria to consider and apply on remand.” Reply Br. of Pl. Union Steelin Supp. of its Mot. for J. upon the Agency R. 1–2 (“Pl.’s Reply”).Plaintiff maintains that doing so “will reduce the likelihood of theneed for multiple remands.” Id. at 2. Union also requests that thecourt first consider Union’s arguments prior to remanding the casebecause “Union has already expended substantial resources in brief-ing the model-match issue.” Id. at 1. In a submission filed after oralargument,1 Union explained that while it “agrees with Defendantthat a remand is necessary in this case, Union believes that the Courtshould not grant Defendant’s request for voluntary remand withoutalso making specific findings as to the legal errors in the originaldetermination and providing instructions as to the scope and sub-stance of the analysis to be conducted on remand.”2 Post-Oral Argu-ment Submission Addressing Proposed Voluntary Remand Order 1–2(“Pl.’s Post-Oral Argument Submission”). Plaintiff proposes that thecourt reach two conclusions identifying legal errors in the FinalResults. First, plaintiff would have the court conclude that the De-

1 At oral argument, plaintiff requested the opportunity to clarify the relief it seeks in thiscase by submitting a revised draft remand order and an explanation of its contents. OralArgument Tr. 10, Apr. 24, 2009. Defendant did not oppose plaintiff ’s request but sought theopportunity to file a response. Id. at 39. Defendant-intervenors also sought the opportunityto respond to plaintiff ’s clarification. Id. at 54–55, 127. At oral argument, the court grantedplaintiff ’s request and invited the other parties to respond to plaintiff ’s proposal. Id. at 127.

2 Plaintiff proposes the following three remand instructions:

1. “Commerce shall determine the appropriate classification of laminated COREwithin the ‘Type’ category in its model match hierarchy. In particular, Commerceshall determine whether laminated CORE is appropriately classified as a separate‘Type’ category or whether laminated CORE should be classified together with ‘otherpainted’ CORE within a single ‘Type’ category.”

. . . .

2. “If Commerce determines to classify laminated CORE within the same ‘Type’category as ‘other painted’ CORE, it must support that determination with substan-tial evidence and persuasively explain why such a determination is reasonable inview of the record evidence that laminated CORE is coated with plastic whereas‘other painted’ CORE is coated with paint; cost and price differences exist betweenlaminated and painted CORE; and Commerce’s model match hierarchy separatelybreaks out PVDF painted products from ‘other painted’ products.”

. . . .

3. “If Commerce cannot present substantial evidence to support including laminatedCORE in the same ‘Type’ category in its model match hierarchy as ‘other painted’products, it shall assign laminated CORE its own ‘Type’ category and recalculatePlaintiff ’s dumping margin using this revised model match hierarchy.”

Post-Oral Argument Submission Addressing Proposed Voluntary Remand Order 4–5.


partment’s decision “to classify Plaintiff ’s laminated corrosion-resistant carbon steel flat products (“CORE”) as painted CORE isunsupported by substantial evidence.” Id. at 2–3. Second, plaintiffurges the court to hold that the model match criteria applied byCommerce in the Final Results “are not reflective of the subjectmerchandise because they fail to address the appropriate classifica-tion of laminated CORE.” Id. at 3 (quotation marks omitted).

Defendant opposes Union’s proposed remand instructions. Def.’sResp. to Pl.’s Post-Oral Argument Submission Addressing Its Pro-posed Voluntary Remand Order 1 (“Def.’s Post-Oral Argument Sub-mission”). Defendant proposes that the court instead issue an orderstating that “Commerce’s determination regarding plaintiff ’s requestto revise the model match methodology is remanded to Commerce forfurther consideration.” Id. at Attach. 1. Nucor and U.S. Steel alsoobject to Union’s proposed remand instructions; in addition, U.S.Steel submits that it does not believe a remand is necessary in thiscase. Def.-Intervenor’s Resp. to Pl.’s Proposed Voluntary RemandOrder; Resp. of Def.-Intervenor United States Steel Corporation toUnion Steel’s Proposed Remand Order and Comments 1–5 (“U.S.Steel’s Post-Oral Argument Submission”).

The court considers defendant’s request for a voluntary remandunder the framework established by the Court of Appeals in SKFUSA Inc. v. United States, 254 F.3d 1022, 1027–30 (Fed. Cir. 2001),which addresses the various types of voluntary remand situationsthat may arise. One such situation occurs when there are no “inter-vening events,” i.e., legal decisions that would affect the outcome ofthe agency’s determination, but when the agency nonetheless re-quests “a remand (without confessing error) in order to reconsider itsprevious position.” Id. at 1029. The Court of Appeals opined that,under these circumstances, a reviewing court has discretion overwhether to grant a voluntary remand and that remand is generallyappropriate “if the agency’s concern is substantial and legitimate” butmay be refused “if the agency’s request is frivolous or in bad faith.” Id.

The court is aware that both defendant-intervenors, at varyingtimes during this litigation, have opposed the issuance of a remandorder on the model match issue. See U.S. Steel’s Post-Oral ArgumentSubmission 1 (stating that “U.S. Steel does not believe that remand iswarranted in this case”); U.S. Steel Resp. 14–26 (arguing that Com-merce properly denied Union’s request to revise the establishedmodel-match criteria); Nucor Resp. 24 (arguing that Commerceshould affirm the portions of the Final Results challenged by plain-tiff). The court, however, will not overlook the salient point thatdefendant itself has called into question an aspect of the Final Re-


sults, i.e., the Department’s basing its model match decision on ananalysis applied in the prior review and not on a consideration of thebody of evidence on the record of this review.

The court rejects the proposed conclusions and remand instructionsurged by plaintiff. Such a remand could not be described as a “vol-untary” remand, and Union essentially requests that the court, priorto issuing a remand order, review the Department’s model matchdetermination on the merits. See Pl.’s Reply 1–2, 15; Oral ArgumentTr. 17–18, April 24, 2009; Pl.’s Post-Oral Argument Submission 1–2(stating that the court “should not grant Defendant’s request for avoluntary remand without also making specific findings as to thelegal errors in the original determination and providing instructionsas to the scope and substance of the analysis to be conducted onremand”). The court, in its discretion, declines to review on the meritsa determination that defendant has described at oral argument as “atbest confusing,” Oral Arg. Tr. 42, and with respect to which defendantindicated that it could not “tell [the court] why it’s reasonable in thisadministrative review . . . and that is the reason why we asked for theremand.” Id. at 47. Defendant acknowledges that “Commerce’s finaldecision lacks any analysis of the record evidence of the thirteenthadministrative review and lacks any analysis of the model matchissue, except to refer to the final decision in the twelfth administra-tive review.” Def.’s Post-Oral Argument Submission 4. Defendantthus raises the question as to whether Commerce acted properly inrelying on data from a previous review, rather than the currentreview, for its decision to deny Union’s request to change the modelmatch methodology. See id. at 2 (explaining that Commerce is re-questing remand to “reconsider Union’s request to revise the modelmatch methodology during the thirteenth administrative review” be-cause the Final Results “failed to address record information regard-ing Union’s proposed classification of laminated CORE in a separatecategory from painted CORE”). Defendant’s reason for requesting aremand is “substantial and legitimate.” See SKF USA Inc., 254 F.3dat 1029. Under these circumstances, judicial review of the modelmatch decision in the Final Results would not serve the goal ofjudicial economy.

Contrary to Union’s arguments, the court is not in a position topresume that an additional remand will be necessary. It is axiomaticthat the remand redetermination the Department files with the courtmust stem from a good faith reconsideration of the model matchdecision. It must be supported by findings of fact grounded in sub-stantial evidence on the record of this review, and it must adhere tostatutory requirements, including the requirement that the Depart-


ment achieve accurate dumping margins through lawful comparisonsof the sales of subject merchandise with home market sales of foreignlike products. A conclusion by Commerce that the model matchesmade during the thirteenth review were not lawful necessarily wouldrequire redetermination of Union’s margin upon remand. Althoughthe court does not adopt plaintiff ’s proposed remand instructions andexercises its discretion to grant defendant’s request for a voluntaryremand, the court, in adopting the substance of defendant’s proposedremand language, effects certain modifications appropriate to thecircumstances of this case.

B. Commerce’s Use of Zeroing in the Final Results Was Lawful

Plaintiff ’s second claim challenges the method Commerce used tocalculate Union’s weighted-average dumping margin. To calculate aweighted-average dumping margin in an administrative review,Commerce first must determine, for each entry of subject merchan-dise falling within the period of review, the normal value and theexport price (or the constructed export price if the export price cannotbe determined). 19 U.S.C. § 1675(a)(2)(A)(i). Commerce then deter-mines a margin for each entry according to the amount by which thenormal value exceeds the export price or constructed export price. 19U.S.C. §§ 1675(a)(2)(A)(ii), 1677(35)(A) (2006); Decision Mem. 4. If theexport price or constructed export price on a particular entry is higherthan normal value, Commerce, in calculating a weighted-averagemargin, assigns a margin of zero, not a negative margin, to the entry.See Decision Mem. 4. Finally, Commerce aggregates these individualmargins in determining a weighted-average dumping margin. 19U.S.C. § 1677(35)(B).

Plaintiff argues that Commerce’s construction of 19 U.S.C. §1677(35), pursuant to which Commerce engaged in zeroing in thisadministrative review, see Decision Mem. 4, is unreasonable andtherefore not in accordance with law. Pl.’s Br. 3–39. Union acknowl-edges that the Court of Appeals and the Court of International Tradeconsistently have upheld Commerce’s practice of zeroing in adminis-trative reviews. Id. at 29. Union argues, however, that a determina-tion Commerce issued under Section 123 of the Uruguay RoundAgreements Act, 19 U.S.C. § 3533(g) (2006), to implement recommen-dations of the World Trade Organization Dispute Settlement Body(“Section 123 Determination”) has adopted a new interpretation of §1677(35) that “justifies a fresh review of this issue by this Court.” Id.at 30 (citing Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Fi-


nal Modification, 71 Fed. Reg. 77,722 (Dec. 27, 2006) (“Section 123Determination”)). According to Union’s argument, in issuing the Sec-tion 123 Determination “Commerce for the first time has interpreted[19 U.S.C. § 1677(35)] to mean one thing with respect to antidumpinginvestigations (that weighted average dumping margins should becalculated without zeroing negative dumping margins), and to meanthe exact opposite with respect to antidumping administrative re-views (that weighted average dumping margins should be calculatedby zeroing negative dumping margins).” Id. at 30. Referring to thesecond step of the Supreme Court’s analysis in Chevron U.S.A. Inc. v.Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), Unionsubmits that “[t]o the best of our knowledge, no court has yet consid-ered the question of whether Commerce’s new statutoryinterpretation—that [19 U.S.C. § 1677(35)] provides for zeroing inreviews but not in investigations—is reasonable within the meaningof step two of Chevron.” Id. at 30–31 (footnote omitted). Union arguesthat Commerce’s construction of 19 U.S.C. § 1677(35) is not reason-able.

According to Union, the upholding of zeroing by the Court of Ap-peals in Timken Co. v. United States, 354 F.3d 1334 (Fed. Cir. 2004),and Corus Staal BV v. Department of Commerce, 395 F.3d 1343 (Fed.Cir. 2005) (“Corus I”), “was expressly premised on the fact that thesame statutory provision governed the weight-averaging element of[Commerce’s] dumping margin methodology and that [Commerce]was applying that provision consistently in both types of proceed-ings.” Pl.’s Reply 12–13. According to Union, the Section 123 Deter-mination removed this underlying premise of the holdings of theCourt of Appeals affirming the use of zeroing, and for this reason thecourt should conduct a new Chevron step-two analysis of Commerce’scurrent statutory interpretation to determine whether those priorholdings are still valid. Id. at 13–14. Union argues that an “interpre-tation of the identical statutory provision to have two diametricallyopposite meanings is unreasonable and directly contrary to the pre-vious holding of the Federal Circuit in Corus I, 395 F.3d at 1347, andTimken, 354 F.3d 1334, 1341–42.” Id. at 11.

Relying on Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir.2007) (“Corus II”), defendant responds that the Court of Appeals hasheld unequivocally that Commerce’s decision to discontinue zeroingin investigations did not affect administrative reviews. Def.’s Resp.11–12. Defendant also argues that Corus I and Timken do not requireCommerce to interpret 19 U.S.C. § 1677(35) consistently in anti-dumping investigations and administrative reviews, id. at 13, andthat Commerce may interpret a statutory provision differently in


different contexts. Id. at 16–17. Defendant-intervenors, relying on 19U.S.C. § 1677f-1(d) (2006), contend that zeroing is required by statutein all antidumping proceedings. U.S. Steel Resp. 27–33; Nucor Resp.17–19. In the alternative, defendant-intervenors argue that zeroing ispermissible under the statute. U.S. Steel Resp. 33–39; Nucor Resp.19–23.

Ruling on Union’s claim challenging the use of zeroing in the thir-teenth administrative review requires the court to decide, initially,whether one or more of the Court of Appeals decisions that addressthe question of zeroing are controlling in this case. Only if no suchdecision is controlling is the court free to conduct what is, in Union’sformulation, “a fresh review of this issue.” See Pl.’s Br. 30. In otherwords, Union’s argument is, first, that the question of statutoryconstruction presented by this case is one of first impression and,second, that the court must conclude that Commerce’s statutory con-struction was unreasonable.

Commerce discussed its construction of 19 U.S.C. § 1677(35) in theDecision Memorandum:

Section 771(35)(A) of the Act [19 U.S.C. § 1677(35)(A)] defines“dumping margin” as the “amount by which the normal valueexceeds the export price or the constructed export price of thesubject merchandise.” (Emphasis added). Outside the context ofantidumping investigations involving average-to-average com-parisons, the Department interprets this statutory definition tomean that a dumping margin exists only when normal value(NV) is greater than export or constructed export price (CEP). Asno dumping margins exist with respect to sales where NV isequal to or less than export or CEP, the Department will notpermit these non-dumped sales to offset the amount of dumpingfound with respect to other sales.

Decision Mem. 4. As the quoted language indicates, Commerce ap-plied in this administrative review a construction of § 1677(35)(A)that it applies generally but that it does not apply in the specificsituation in which it conducts an average-to-average comparison inan antidumping investigation. The exception Commerce makes foraverage-to-average comparisons in investigations stems from U.S.action to implement certain decisions of the World Trade Organiza-tion (“WTO”) concluding that zeroing as applied in various U.S. an-tidumping investigations was inconsistent with U.S. internationalobligations under Article 2.4.2 of the Agreement on the Implementa-tion of Article VI of the General Agreement on Tariffs and Trade. Itwas for this purpose that Commerce issued the Section 123 Determi-


nation on December 27, 2006, announcing that “the Department willno longer make average-to-average comparisons in investigationswithout providing offsets for non-dumped comparisons.” Section 123Determination, 71 Fed. Reg. at 77,722. In the Section 123 Determi-nation, Commerce stated that it was declining to adopt in any othersegment of an antidumping proceeding the change it announced to itsprocedure for average-to-average comparisons in investigations. Id.at 77,724. Commerce set an effective date of February 22, 2007 forthat change.3

In Corus II, the Court of Appeals upheld as reasonable Commerce’suse of zeroing in the second administrative review of an antidumpingduty order on hot-rolled steel from the Netherlands. See Corus II, 502F.3d at 1372. The plaintiff in Corus IIargued that a number of eventssubsequent to Commerce’s issuing final results in the second admin-istrative review “demonstrate that Commerce had abandoned thepolicy of zeroing.” Id. at 1373. Those events included Commerce’saction to implement instructions from the U.S. Trade Representative,issued April 23, 2007 under Section 129 of the Uruguay Round Agree-ments Act, 19 U.S.C. § 3538 (2006), in response to a WTO decisionwith respect to eleven specific antidumping investigations. Corus II,502 F.3d at 1374; Implementation of the Findings of the WTO Panel inUS-Zeroing (EC): Notice of Determinations Under Section 129 of theUruguay Round Agreements Act and Revocations and Partial Revo-cations of Certain Antidumping Duty Orders, 72 Fed. Reg. 25,261(May 4, 2007). In rejecting the argument made by the plaintiff inCorus II, the Court of Appeals also discussed the relevance of theSection 123 Determination to that plaintiff ’s claim:

When Commerce announced the elimination of zeroing in con-junction with the use of average-to-average comparisons to cal-culate dumping margins in antidumping investigations, itstated that the new policy did not apply to any other proceed-ings, including administrative reviews. Antidumping Proceed-ings: Calculation of the Weighted-Average Dumping MarginDuring an Antidumping Investigation; Final Modification, 71Fed. Reg. 77772, 77722–24 (Dec. 27, 2006). Thus, Commerce’snew policy has no bearing on the present appeal, just as it hadno effect on the final determination of Corus’s fourth adminis-trative review.

3 Although the Section 123 Determination announced an effective date of January 16, 2007,Commerce later announced a delay in the effective date to February 22, 2007. AntidumpingProceedings: Calculation of the Weighted-Average Dumping Margins in Antidumping In-vestigations; Change in Effective Date of Final Modification, 72 Fed. Reg. 3783 (Jan. 26,2007).


Id. at 1374. The Court of Appeals addressed the effect of the Section123 Determination and the related developments by stating that “[t]othe extent recent developments have changed the current scheme,Commerce has made it clear that those changes do not apply retro-actively to administrative reviews. Thus, our previous determination[in Corus I, 395 F.3d at 1349] that Commerce’s policy of zeroing ispermissible under the statute applies to the challenged administra-tive review.” Id. at 1375. In this way, the Court of Appeals in Corus IImade it amply clear that it did not consider Commerce’s decision todiscontinue zeroing when performing average-to-average compari-sons in antidumping investigations while continuing zeroing in ad-ministrative reviews to be a sufficient basis to disturb its precedents,under which it had held zeroing to be permissible in administrativereviews based on the reasonableness of the Department’s construc-tion of 19 U.S.C. § 1677(35). Because the holding of the Court ofAppeals in Corus II is controlling on the question presented byUnion’s zeroing claim, the court must uphold as reasonable the con-struction of 19 U.S.C. § 1677(35) that Commerce set forth in theDecision Memorandum. Union’s argument that the Section 123 De-termination marked the first time that Commerce has interpreted 19U.S.C. § 1677(35) “to mean one thing with respect to antidumpinginvestigations . . . and to mean the exact opposite with respect toantidumping administrative reviews,” Pl.’s Br. 30, does not suffice todistinguish the zeroing claim it makes in this case from the precedentestablished by Corus II.

In NSK Ltd. v. United States, 510 F.3d 1375 (Fed. Cir. 2007), theCourt of Appeals followed an approach similar to that of Corus II,rejecting the argument that it should hold Commerce’s use of zeroingunlawful based on a decision of the WTO Dispute Settlement Bodyand on statements by the United States indicating that the UnitedStates would comply with that decision. NSK, 510 F.3d at 1379–80.The Court of Appeals explained that

until Commerce abandons zeroing in administrative reviewssuch as this one, a remand in this case would be unavailing.Therefore, because Commerce’s zeroing practice is in accordancewith our well-established precedent, until Commerce officiallyabandons the practice pursuant to the specified statutory scheme,we affirm its continued use in this case.

Id. at 1380 (emphasis added).Union argues that Corus IIand NSK are distinguishable from this

case because the administrative reviews in those prior cases had been


completed prior to the publication of the Section 123 Determination.Pl.’s Reply 11; Oral Argument Tr. 100. This argument is unconvincing.In Corus II, the Court of Appeals reasoned that the Section 123Determination did not bear on the question of the reasonableness ofCommerce’s construction of 19 U.S.C. § 1677(35) to allow zeroing inadministrative reviews, noting that the Section 123 Determination,by its language, did not apply to administrative reviews. See Corus II,502 F.3d at 1374–75. Because of the breadth of the holding in CorusII and the reasoning on which that holding is based, the fact that thesubject administrative review was completed on March 17, 2008, adate that was after the issuance of the Section 123 Determination andthe February 22, 2007 effective date thereof, does not place this caseoutside of the precedent that Corus II establishes.

Nor does the court find merit in Union’s argument that the uphold-ing of zeroing by the Court of Appeals in Timkenand Corus I, “wasexpressly premised on the fact that the same statutory provisiongov-erned the weight-averaging element of [Commerce’s] dumping mar-gin methodology and that [Commerce] was applying that provisionconsistently in both types of proceedings.” See Pl.’s Reply 13. Plain-tiff ’s interpretation of the holdings in Timken and Corus I does notwithstand scrutiny when considered according to the holdings inCorus II and NSK, with which plaintiff ’s interpretation is plainlyinconsistent.

The court’s conclusion on Union’s zeroing claim is in accord with thedecision in Corus Staal BV v. United States, 32 CIT __, 593 F. Supp.2d 1373 (2008) (“Corus III”), in which the Court of InternationalTrade also considered the issue of whether it is permissible for Com-merce to interpret 19 U.S.C. § 1677(35) to allow zeroing in reviewsdespite the discontinuation of zeroing in average-to-average compari-sons in investigations. The plaintiff in Corus III argued that “FederalCircuit decisions upholding the use of zeroing are not binding becauseCommerce’s interpretation of § 1677(35)(A)–(B) — which prohibitszeroing in investigations, but not in administrative reviews — isinconsistent and, therefore, unreasonable.” Corus III, 32 CIT at __,593 F. Supp.2d at 1383. The Court of International Trade applied aChevron step-two analysis to conclude that Commerce’s interpreta-tion of 19 U.S.C. § 1677(35) is reasonable and in accordance with law,emphasizing that “[t]he Federal Circuit has repeatedly found Com-merce’s use of zeroing in administrative reviews to be reasonable.” Id.at __, 593 F. Supp.2d at 1384.


IV.Conclusion And Order

With respect to the model match issue, the court concludes thatgranting defendant’s request for voluntary remand is appropriate inthe circumstances of this case. Also, the court concludes that theFinal Results must be affirmed with respect to the Department’s useof zeroing based on precedent of the Court of Appeals. Therefore, uponconsideration of all proceedings and submissions herein, and upondue deliberation, it is hereby

ORDERED that defendant’s request for a partial voluntary re-mand of Certain Corrosion-Resistant Carbon Steel Flat Products fromthe Republic of Korea: Notice of Final Results of the Thirteenth Ad-ministrative Review 73 Fed. Reg. 14,220 (Mar. 17, 2008) (“Final Re-sults”) be, and hereby is, GRANTED with modifications to defen-dant’s proposed remand instructions as set forth herein; it is further

ORDERED that Commerce, upon remand, shall review and recon-sider its “model match” methodology, including its decision in theFinal Results to deny Union Steel’s request for a revision of thatmodel match methodology, by which Commerce compared the types ofsubject merchandise in plaintiff ’s U.S. sales with the types of foreignlike products in plaintiff ’s sales in its home market; it is further

ORDERED that Plaintiff ’s Motion for Judgment upon the AgencyRecord, as filed on August 21, 2008, be, and hereby is, GRANTEDonly to the extent that a remand is hereby ordered under whichCommerce is directed to review and reconsider its model match meth-odology, DENIED to the extent that plaintiff ’s motion requests aremand detailing the specific findings and instructions contained inplaintiff ’s Post-Oral Argument Submission Addressing Proposed Vol-untary Remand Order, and DENIED to the extent that such motionseeks to have set aside the Department’s Final Results with respect tothe zeroing methodology used therein; it is further

ORDERED that the requests of defendant-intervenors Nucor andU.S. Steel that the Final Results be affirmed with respect to themodel match methodology used therein be, and hereby are, DENIED;it is further

ORDERED that the Department shall issue upon remand a rede-termination that responds to Union Steel’s request that Commercerevise the model match methodology and that such redeterminationshall comply with this Opinion and Order, be supported by substan-tial record evidence, and be in all respects in accordance with law; itis further

ORDERED that the Department shall have ninety (90) days fromthe date of this Opinion and Order to file its redetermination uponremand in this proceeding, that plaintiff and defendant-intervenorsshall have thirty (30) days from the filing of the redetermination upon


remand to file comments thereon with the court, and that defendantshall have fifteen (15) days thereafter to file any reply to such com-ments; and it is further

ORDERED that the Final Results be, and hereby are, affirmedwith respect to the Department’s use of zeroing methodology therein.Dated: September 28, 2009

New York, New York/s/ Timothy C. Stanceu

TIMOTHY C. STANCEU

Judge

◆

Slip Op. 09–106

AMANDA FOODS (VIETNAM) LTD., ET AL., Plaintiffs, v. UNITED STATES, ET

AL., Defendants.

Before: Pogue, JudgeConsol. Ct. No. 08–00301

[Remand to Department of Commerce for further consideration of surrogate coun-try selection and appropriate separate rates for non-individually investigated respon-dents.]

Dated: September 29, 2009

Mayer Brown LLP (Matthew J. McConkey and Jeffery C. Lowe) for Plaintiff AmandaFoods (Vietnam) Ltd.

Picard Kentz & Rowe LLP (Andrew W. Kentz and Nathaniel M. Rickard) for Con-solidated Plaintiff and Defendant-Intervenor AdHoc Shrimp Trade Action Committee.

Thompson Hine LLP (Matthew R. Nicely and Christopher M. Rassi) and Winston &Strawn LLP (Valerie S. Ellis and William H. Barringer) for Consolidated Plaintiffs CaMau Seafood Joint Stock Company; Cadovimex Seafood Import-Export and ProcessingJoint-Stock Company; Cafatex Fishery Joint Stock Corporation; Can Tho Agriculturaland Animal Products Import Export Company; Coastal Fisheries Development Corpo-ration; C.P. Vietnam Livestock Co., Ltd.; Cuulong Seaproducts Company; DanangSeaproducts Import Export Corporation; Investment Commerce Fisheries Corporation;Minh Hai Export Frozen Seafood Processing Joint-Stock Company; Minh Hai Joint-Stock Seafoods Processing Company; Ngoc Sinh Private Enterprise; Nha Trang Fish-eries Joint Stock Company; Nha Trang Seaproduct Company; Phu Cuong SeafoodProcessing & Import-Export Co., Ltd.; Sao Ta Foods Joint Stock Company; Soc TrangAquatic Products and General Import-Export Company; Thuan Phuoc Seafoods andTrading Corporation; UTXI Aquatic Products Processing Company; Viet Foods Co.,Ltd.; Kim Anh Co., Ltd.; Phuong Nam Co., Ltd.

Tony West, Assitant Attorney General; Jeanne E. Davidson, Director; Franklin E.White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, UnitedStates Department of Justice (Stephen C. Tosini), and, of counsel, Jonathan Zielinski,Office of Chief Counsel for Import Administration, Department of Commerce for De-fendant United States.


Thompson Hine LLP (Matthew R. Nicely and Christopher M. Rassi) for Defendant-Intervenors Camau Frozen Seafood Processing Import Export Corporation; Grobest &I-Mei Industrial (Vietnam) Co., Ltd.; Minh Phu Seafood Corporation; Minh Qui SeafoodCo., Ltd.; Minh Phat Seafood Co., Ltd.

OPINION AND ORDER

Pogue, Judge:Introduction

In this consolidated action, Plaintiffs seek review of the Final Re-sults issued by the Department of Commerce (“the Department” or“Commerce”) in the second administrative review (“Second Review”)of the antidumping (“AD”) order covering warmwater shrimp fromthe Socialist Republic of Vietnam. See Certain Frozen WarmwaterShrimp From the Socialist Republic of Vietnam, 73 Fed. Reg. 52,273(Dep’t Commerce Sept. 9, 2008) (final results and final partial rescis-sion of antidumping duty administrative review) (“Final Results”),1

and accompanying Issues & Decision Memorandum, A-552-802, 2dAR 02/01/06–01/31/07 (Sept. 2, 2008), Admin. R. Pub. Doc. 231, avail-able at http://ia.ita.doc.gov/frn/summary/vietnam/E8-20927-1.pdf(last visited Sept. 23, 2009) (“Issues & Decision Mem.”).2

Three questions are before the court. First, whether Commerce’sselection of Bangladesh as the surrogate country3 for the SecondReview was supported by substantial evidence on the record4; second,whether Commere’s decision to value raw shrimp based on the sur-rogate value data contained in an intergovernmental agency study,Network of Aquaculture Centres in Asia-Pacific, Evaluation of theImpact of the Indian Ocean Tsunami and the US Anti-DumpingDuties on the Shrimp Farming Sector of South and South-East Asia:

1 The Final Results cover entries of the subject merchandise made from February 1, 2006through January 31, 2007, the period of review (“POR”).2 The Issues & Decision Mem. was adopted by and incorporated into the Final Results. FinalResults, 73 Fed. Reg. at 52,273.3 Vietnam has a non-market economy (“NME”). Generally, in an NME, because of limita-tions on the availability of data, Commerce may not be able to determine the normal or fairmarket value of products as it would in a market economy (“ME”). Consequently, Commercederives the normal value of such products by aggregating the “best available” informationwith respect to factors utilized to produce the merchandise in “a market economy countryor countries considered to be appropriate by [the Department],” i.e., a “surrogate” country.Tariff Act of 1930 § 773(c)(1), as amended, 19 U.S.C. § 1677b(c)(1).4 See Dorbest Ltd. v. United States, 30 CIT 1671, 1676462 F. Supp. 2d 1262, 1268 (2006) (“Ifthe question is whether Commerce may use a particular piece of data, whether Commercemay use a factor in weighing the choice between two data sources, or what weight Com-merce may attach to such a factor, the question is legal. . . . If the question is whetherCommerce should have used a particular piece of data, when viewed among alternativeavailable data, or what weight Commerce should attach to a price or data, the question isfactual.” (emphasis in original) (citations omitted)).


Case Studies in Vietnam, Indonesia and Bangladesh (2006),http://library.enaca.org/shrimp/publications/NACAStudy.pdf (“NACAStudy”), is supported by substantial evidence on the record; and,third, whether Commerce’s assignment — as reasonable for Plaintiffs— of a separate or “all others” rate of either 4.30% or 4.57% wassupported by substantial evidence on the record.

After specifying the controlling standard of review and summariz-ing the background of this dispute, the court will discuss each issue inturn.

Standard of Review

When it reviews the agency’s final determinations in an adminis-trative review of an AD duty order, the court will uphold all agencydeterminations, findings, or conclusions, except those not supportedby substantial evidence on the record or otherwise not in accordancewith law. Tariff Act of 1930 § 516A(b)(1)(B)(i), as amended, 19 U.S.C.§ 1516a(b)(1)(B)(i)(2006).5

In reviewing whether Commerce’s decisions are unsupported bysubstantial evidence, the court assesses whether the agency action isreasonable given the record as a whole. See Nippon Steel Corp. v.United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). Substantialevidence is “such relevant evidence as a reasonable mind might ac-cept as adequate to support a conclusion.” Consol. Edison Co. v.NLRB, 305 U.S. 197, 229 (1938). While “the possibility of drawing twoinconsistent conclusions from the evidence does not prevent an ad-ministrative agency’s findings from being supported by substantialevidence,” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927,933 (Fed. Cir. 1984) (citation omitted), the “substantiality of evidencemust [also] take into account whatever in the record fairly detractsfrom its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488(1951); Gerald Metals, Inc. v United States, 132 F.3d 716, 720 (Fed.Cir. 1997) (explaining that the substantial evidence standard re-quires that contradictory record evidence be taken into account).

Background

At the request of Plaintiff Ad Hoc Shrimp Trade Action Committee(“AHSTAC”) and twenty-two individual exporters, Commerce, inApril 2007, initiated the Second Review. See Certain Frozen Warm-water Shrimp From the Socialist Republic of Vietnam and the People’sRepublic of China, 72 Fed. Reg. 17,095, 17,096 (Dep’t Commerce Apr.6, 2007) (notice of initiation of administrative reviews of antidumpingorders).5 Further citation to the Tariff Act of 1930 is to Title 19 of the U.S. Code, 2006 edition.


For this POR, eighteen of the twenty-three respondent Plaintiffsnow before us requested review, while representatives of the domesticindustry requested review for all twenty-three respondent Plaintiffsplus several other respondents. Rather than reviewing all respon-dents, Commerce limited the “mandatory respondents” for the SecondReview to two companies — Camimex and Minh Phu Group.6 Selec-tion of Respondents Memorandum, A–552–802, 2d AR02/01/06–01/31/07 (July 18, 2007), Admin. R. Pub. Doc. 102, at 7.These two companies were both mandatory respondents in the origi-nal investigation, but neither had been reviewed in the first admin-istrative review.

As part of its review, because Vietnam is an NME, Commerce sentinterested parties a letter asking for comments on surrogate countryselection and information relating to the valuation of factors of pro-duction. Letter to Interested Parties, A–552–802, 2d AR02/01/06–01/31/07 (Aug. 3, 2007), Admin. R. Pub. Doc. 110 (“Letter toInterested Parties”). This memorandum identified five countries froma surrogate country list that Commerce deemed to be equally eco-nomically comparable to Vietnam for administrative review purposes:Bangladesh, Pakistan, India, Sri Lanka, and Indonesia. Id. Attach. Iat 2. Because Commerce’s regulations specify that it will normallyvalue all factors of production, except for labor, by using data from asingle surrogate country, 19 C.F.R. § 351.408(c)(2),7 Commerce’s letterwas preliminary to its choice from the list of five.

Responding to Commerce’s letter, Camimex and Minh Phu Groupsubmitted comments in favor of selecting Bangladesh and offeredcertain surrogate value data, including the NACA Study data fromBangladesh.8 Minh Phu & Camimex’s Surrogate Country & Value

6 See 19 U.S.C. § 1677f–1(c)(2) (“If it is not practicable to make individual weighted averagedumping margin determinations. . . because of the large number of exporters or producersinvolved in the investigation or review, the administering authority may determine theweighted average dumping margins for a reasonable number of exporters or producers bylimiting its examination to —

(A) a sample of exporters, producers, or types of products that is statistically valid basedon the information available to the administering authority at the time of selection,or

(B) exporters and producers accounting for the largest volume of the subject merchan-dise from the exporting country that can be reasonably examined.”)

7 In relevant part, 19 C.F.R. § 351.408(c) reads:

(c) Valuation of factors of production. For purposes of valuing the factors of production... under section 773(c)(1) of the Act the following rules will apply:...

(2) Valuation in a single country. Except for labor, as provided in paragraph (d)(3) ofthis section, the Secretary normally will value all factors in a single surrogatecountry.


Submission, A–552–802, 2d AR 02/01/06–01/31/07 (Oct. 26, 2007),Admin. R. Pub. Doc. 147. Petitioners, in turn, requested that Indiaserve as the surrogate country, and also offered certain publicly avail-able surrogate value data from India. Letter from Pet’rs, A–552–802,2d AR 02/01/06–01/31/07 (Oct. 26, 2007), Admin. R. Pub. Doc. 149.

In the Preliminary Results of the review, Commerce chose Bang-ladesh as the surrogate country, and used data from the NACA Studyto value Bangladeshi raw shrimp. See Certain Frozen WarmwaterShrimp from the Socialist Republic of Vietnam, 73 Fed. Reg. 12,127,12,133–34 (Dep’t Commerce Mar. 6, 2008) (preliminary results, pre-liminary partial rescission and final partial rescission of the secondantidumping duty administrative review) (“Preliminary Results”).

To respond to the Preliminary Results, Plaintiff AHSTAC filed acase brief addressing, among other issues, the use of Bangladesh as asurrogate country and the use of the NACA Study data to valueBangladeshi raw shrimp. Pet’rs’ Br., A–552–802, 2d AR02/01/06—01/31/07 (May 7, 2008), Admin. R. Pub. Doc. 215, at 3, 6–8.Rejecting AHSTAC’s claim, Commerce continued with its decision touse Bangladesh as the surrogate country and to use data from theNACA Study to provide surrogate values. Issues & Decision Mem. at4–5; see also Final Results, 73 Fed. Reg. at 52,273 (listing no changefrom Preliminary Results in this regard).

Also in its Preliminary Results, Commerce calculated de minimisdumping margins for mandatory respondents Camimex and MinhPhu Group and granted all Plaintiffs separate rate status.9 Prelimi-nary Results, 73 Fed. Reg. at 12,135. At this time, Commerce assignedall separate rate companies the average of Camimex and Minh PhuGroup’s margins — a de minimis rate. Id.

In its Final Results, Commerce maintained de minimis rates forCamimex and Min Phu Group, but, rather than averaging the twomandatory respondents’ rates and using the resulting average for theseparate rate companies, Commerce assigned to the separate ratecompanies the most recent rate that each had received in a priorproceeding. Specifically, the Department applied the rate that theseparate rate companies had received in the original investigation,based on sales made prior to the imposition of the dumping order,8 Commerce had used Bangladesh as the surrogate country in the original, underlying,investigation, in the first administrative review, and in a new shipper review under this ADorder.9 See Decca Hospitality Furnishings, LLC v. United States, 29 CIT 920, 921, 391 F. Supp. 2d1298, 1300 (2005) (“While Commerce presumes that all companies [operating in an NME]are under state-control, a company may rebut this presumption, and therefore qualify foran antidumping duty rate separate from the PRC-wide rate, if it demonstrates de jure andde facto independence from government control.”). Companies qualifying for such a “sepa-rate” rate are referred to as having “separate rate status.”


except that separate rate companies that had been examined in theFirst Administrative Review, and which received a different rate inthat review, were assigned the rate they received in the First Review.Final Results at 52,275–76. This resulted in Vietnam Fish-One Com-pany, Limited (“Fish One”) and Grobest being assigned a zero rate(the rate received by these companies in the First Review); Minh HaiJoint-Stock Seafoods Processing Company being assigned a 4.30%rate (the rate received by this company in the original investigation,based on its own data); while all other Plaintiffs were assigned a rateof 4.57% (the rate received by these companies in the original inves-tigation).

Discussion

I. Selection of Surrogate Country

The first issue before the court is Commerce’s choice of Bangladeshas a surrogate ME country. As noted above, the selection of surrogateME countries in the valuation of NME factors of production is regu-lated by 19 U.S.C. § 1677b(c)(1), which requires that the valuation bebased on “the best available information regarding the values of suchfactors in a market economy country or countries considered to beappropriate by the administering authority.” With regard to thechoice of an “appropriate” country, the statute specifies two criteriathat Commerce must use in its analysis. Specifically:

[Commerce] shall utilize, to the extent possible, the prices orcosts of factors of production in one or more market economycountry that are —

(A) at a level of economic development comparable to that ofthe nonmarket economy country, and

(B) significant producers of comparable merchandise.

19 U.S.C. § 1677b(c)(4).For purposes of determining whether a surrogate country is at a

comparable level of economic development, Commerce’s regulationsspecify that per capita income is to be given prominence. See 19 C.F.R.§ 351.408(b) (“Economic Comparability. In determining whether acountry is at a level of economic development comparable to thenonmarket economy [country] . . ., the Secretary will place primary


emphasis on per capita GDP as the measure of economic comparabil-ity.”).10

Procedurally, in selecting a surrogate country, Commerce, as amatter of policy, follows a four-step process. First, Commerce com-piles a list of countries that are at a level of economic development“comparable” to the country being investigated. Secondly, Commerceascertains which, if any, of those countries produce comparable mer-chandise. Third, from the resulting list of countries, Commerce thendetermines which, if any, of the countries are significant producers ofthe comparable merchandise. Finally, Commerce evaluates the reli-ability and availability of the data from the countries that are sig-nificant producers. See Import Administration Policy Bulletin 04.1:Non-Market Economy Surrogate Country Selection Process (Dep’tCommerce Mar. 1, 2004), available at http://ia.ita.doc.gov/policy/bull04-1.html (last visited Sept. 23, 2009) (“Policy Bulletin”).

Following this process in the Second Review, Commerce, as notedabove, prepared a list of five possible surrogate countries and thenstated that, for purposes of the review, Commerce would consider allfive to be “equally economically comparable” to Vietnam. This listincluded Pakistan, India, Sri Lanka, and Indonesia, in addition toBangladesh, the country eventually chosen as the surrogate country.See Letter to Interested Parties, Admin. R. Pub. Doc. 110, Attach. I at2; Issues & Decision Mem. 4.

AHSTAC challenges this determination, noting that the countrieson Commerce’s list do not have equal per capita GDP; nor are theyequally distant from Vietnam by this measure. In particular, India,the potential surrogate country favored by AHSTAC, appears to becloser to, and thus more “comparable” to Vietnam in this ragard thanis Bangladesh. See Letter to Interested Parties, Admin. R. Pub. Doc.110, Attach. I at 2.

In response, Commerce and Defendant-Intervenors argue, cor-rectly, that Commerce is not required to select more than one surro-gate country, 19 C.F.R. § 351.408(c)(2), and that Commerce may givesignificant weight to data quality in determining an appropriatesurrogate country. See Globe Metallurgical, Inc. v. United States, SlipOp. 08–105, 2008 Ct. Intl. Trade LEXIS 105, at *10–11 (CIT Oct. 1,2008) (concluding that Commerce acted reasonably in selecting asurrogate country based on its superior quality of available datarelative to other comparable market economies). However, this re-sponse provides no support for Commerce’s determination of eco-10 No party challenges Commerce’s use of per capita Gross National Income (“GNI”) as aproxy for per capita GDP.


nomic comparability. Even assuming, arguendo, that Commerce hasprovided evidence of data superiority that could, if accepted by thecourt,11 support the selection of Bangladesh as the surrogate countryover India, this is not a basis for assuming that Bangladesh and Indiaare equally comparable to Vietnam in terms of per capita GDP.

Nor has Commerce explained why the difference between Bang-ladesh and Vietnam, in per capita GDP, is not relevant in this case orwhy the difference in economic similarity to Vietnam is outweighedby the differences in quality of data between Bangladesh and India.Rather, without explanation, Commerce has adopted a policy of treat-ing all countries on the surrogate country list as being equally com-parable to Vietnam. As Commerce’s chosen designation has not beensupported by any justification or evidence at all, it is not supported bysubstantial evidence. See Bowman Transp., Inc. v. Arkansas-BestFreight Sys, Inc., 419 U.S. 281, 285 (1975) (explaining that, evenunder the narrower arbitrary and capricious standard of review, theagency must examine the relevant data and articulate a satisfactoryexplanation for its action, including a “rational connection betweenthe facts found and the choice made” (quoting Burlington TruckLines, Inc. v. United States, 371 U.S. 156, 168 (1962))).12

Finally, Commerce’s designation of equal economic comparabilityprevents the court from determining whether the selection of Bang-ladesh, as opposed to India, on the basis of the purportedly betterdata, is reasonable considering the record as a whole.

The Department argues that this court’s decision in Fujian LianfuForestry Co. v. United States, Slip Op. 09–81, 2009 WL 2461012 (CITAug. 10, 2009), rejected “an identical challenge to Commerce’s surro-gate country selection methodology to that raised by Ad Hoc.” (Def.’sNotice of Subsequent Authority 2.) But Fujian Lianfu Forestry isdistinguishable, as a comparison of the level of explanation providedby Commerce in each case indicates.

In Fujian Lianfu Forestry, the court upheld, as supported by sub-stantial evidence, Commerce’s treatment of all potential surrogatecountries on its surrogate country list as equally economically com-parable to the NME at issue in that case, despite the “parties’ argu-

11 Whether this evidence is sufficient and should be accepted by the court is a substantialpart of the second question before the court. For now, however, we will assume a positiveanswer to this question.12 Moreover, a reviewing court should not attempt itself to make up for such deficiencies;“we may not supply a reasoned basis for the agency’s action that the agency itself has notgiven.” Bowman, 419 U.S. at 285–86 (citing SEC v. Chenery Corp., 332 U.S. 194, 196(1947)); Atchison, Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807 (1973)(plurality) (“[T]he agency must set forth clearly the grounds on which it acted.”).


ments that India [the chosen surrogate country]’s GNI (USD 620) wastoo disparate from China [the NME]’s (USD 1290) for India to beconsidered ‘economically comparable.’” Fujian Lianfu Forestry, 2009WL 2461012, at *16–17. In support of its determination in that case,Commerce had offered the following explanation:

While the Department’s regulations at 19 CFR 351.408 instructthe Department to consider per capita income when determin-ing economic comparability, neither the statute nor the Depart-ment’s regulations define the term ‘economic comparability.’ Assuch, the Department does not have a set range within which acountry’s GNI per capita could be considered economically com-parable. In the context of the World Development Report, whichcontains approximately 180 countries and territories, the differ-ence in GNI per capita between India and the PRC is minimal.As previously stated in the Surrogate Country Selection Memo,‘while the difference between the PRC’s USD1290 per capitaGNI and India’s USD 620 per capita GNI in 2004 seems large innominal terms, seen in the context of the spectrum of economicdevelopment across the world, the two countries are at a fairlysimilar stage of development.’ For example, in the World Devel-opment Report the four countries immediately higher thanChina in per capita GNI were Egypt (which was on the list ofpotential surrogate countries), Morocco, Columbia [sic], andBosnia. Their per capita GNIs were higher than China’s byUSD20, USD230, USD710, and USD750, respectively. India’sGNI per capita was only USD 670 lower than China’s. Therefore,the Department disagrees with the contention that India is nolonger ecomoically comparable to the PRC.

Id. (quoting Issues & Decision Mem. for 2004–2005 Admin. Rev. ofWooden Bedroom Furniture from the People’s Republic of China,A–570–890, AR 06/24/04–12/31/05 (Aug. 8, 2007), available athttp://ia.ita.doc.gov/frn/summary/prc/E7-16584-1.pdf (last visitedSept. 23, 2009)).

Here, in contrast to Fujian Lianfu Forestry, Commerce has failed toprovide more than conclusory reasoning for why the GNI discrepancybetween Vietnam and the countries on the Surrogate Country Listdid not affect the Department’s comparability determination. Rather,as noted above, Commerce devised its Surrogate Country List with-out explanation and, again without explanation, adopted a policy oftreating all countries on this list as being equally comparable to


Vietnam.13 Significantly, the Department’s Policy Bulletin states thateach Surrogate Country Memorandum must explain how the chosencountry satisfies each element of the statutory criteria. In accordancewith the Department’s own policy, therefore, the Surrogate CountryMemorandum must explain why its chosen surrogate country is at alevel of economic development comparable to Vietnam. See 19 U.S.C.§ 1677b(c)(4)(A). The memorandum in this case does not do so. SeeSecond Antidumping Duty Administrative Review of Certain FrozenWarmwater Shrimp from the Socialist Republic of Vietnam: Selectionof a Surrogate Country, A–552–802, 2d AR 02/01/06–01/31/07 (Feb.28, 2008), Admin. R. Pub. Doc. 186, at 6–7. Accordingly, the courtcannot find on this record that Commerce’s surrogate country selec-tion is supported by substantial evidence.

For these reasons the court must remand this issue to Commerce sothat it may: 1) explain why it is justified in treating all the countrieson the surrogate country list as equally comparable to Vietnam,despite their differences in per capita GDP, or 2) explain why thedifference in comparability to Vietnam in per capita GDP betweenIndia and Bangladesh is small enough that it may be outweighed bysuperior quality of the Bangladeshi data, providing a reasoned basisfor the determination of such superiority, or 3) otherwise reconsiderits determination in accordance with this opinion.

II. Use of NACA Study

The second issue before the court is whether Commerce’s decision tovalue raw shrimp based on the surrogate value data contained in theNACA Study, supra, is supported by substantial evidence on therecord.14 In making this selection, Commerce rejected data submittedby the petitioners, specifically a price quote for Indian shrimp sub-mitted by affidavit and a public list of ranged shrimp prices from anIndian shrimp processor. Plaintiffs claim that the Bangladeshi data isinferior to the Indian data, and that Commerce should have, there-fore, used the Indian data in the valuation of raw shrimp.

In considering the validity of proposed surrogate values, Commerceseeks to weigh the specificity, the accuracy, and the contemporaneityof the proposed data. See Preliminary Results, 73 Fed. Reg. at 12,134.In making such evaluations Commerce considers (1) whether thesurrogate value is product-specific; (2) whether the surrogate value is13 As the court’s opinion in Fujian Lianfu Forestry was not issued until August 10, 2009, wewill not assume that Plaintiff was on notice of the Department’s position at the time of theadministrative proceeding here.14 Commerce’s selection of the NACA study was, to some degree, based on its selection ofBangladesh as the surrogatecountry. See supra.


representative of a range of prices within the POR; (3) whether asurrogate value is a non-export value; and (4) whether the surrogatevalue is tax exclusive. See, e.g., Polyethylene Retail Carrier Bags fromthe People’s Republic of China, 69 Fed. Reg. 34,125 (Dep’t CommerceJune 18, 2004) (final determination of sales at less than fair value),and accompanying Issues & Decision Memorandum, A–570–886(June 18, 2004), available at http://ia.ita.doc.gov/frn/summary/prc/04-13815-1.pdf (last visited Sept. 23, 2009) 44; Manganese Metal fromthe People’s Republic of China, 60 Fed. Reg. 31,282, 31,284 (Dep’tCommerce June 14, 1995) (preliminary determination of sales at lessthan fair value); accord Dorbest, 30 CIT at 1686, 462 F. Supp. 2d at1276.

As noted above, in making its selection, Commerce is required toselect “the best available information regarding the values of suchfactors in a market economy country or countries.” 19 U.S.C. §1677b(c)(1). Because “best available information” is not defined in thestatute, Commerce has significant discretion in making this determi-nation. See Nation Ford Chem. Co. v. United States, 166 F.3d 1373,1377 (Fed. Cir. 1999). Nonetheless, for Commerce’s conclusion to besupported by substantial evidence, the court must be satisfied that,viewing the record as a whole, a reasonable mind could conclude thatCommerce chose the best available information. See Dorbest, 30 CITat 1676–77, 462 F. Supp. 2d at 1269.

For the court to conclude that a reasonable mind would supportCommerce’s selection of the NACA Study as the best available infor-mation, Commerce needed to justify its selection. See Olympia Indus.,Inc. v. United States, 22 CIT 387, 390, 7 F. Supp. 2d 997, 1001 (1998)(“Commerce has an obligation to review all data and then determinewhat constitutes the best information available or, alternatively, toexplain why a particular data set is not methodologically reliable.”).In doing so, Commerce must “conduct a fair comparison of the datasets on the record” with regard to its announced method or criteria.Allied Pac. Food (Dalian) Co. v. United States, 30 CIT 736, 757, 435F. Supp. 2d 1295, 1313–14 (2006) (emphasis added).

The court cannot now determine, however, whether Commerce hasconducted the required analysis because, as noted above, one aspectof Commerce’s evaluation of proposed surrogate values is that theagency “normally will value all factors in a single surrogate country.”19 C.F.R. § 351.408(c)(2). While the word “normally” leaves theagency some flexibility, the “single country” aspect of the agency’sregulation still has the potential to affect its data choices. Thus, if onremand Commerce chooses another surrogate country, it will need tore-visit its analysis of its data choices for valuing raw shrimp. The


court, therefore, will defer further consideration of this issue until theremand determination is complete.

III. Separate Rate Determination

As noted above, in order for the court to uphold, as supported bysubstantial evidence on the record, Commerce’s application of adumping margin as reasonable for the Plaintiffs, the margin must bebased on “such relevant evidence as a reasonable mind might acceptas adequate to support a conclusion.” Matsushita, 750 F.2d at 933(quoting Universal Camera, 340 U.S. at 477). To allow the court to soconclude, Commerce must articulate a “rational connection betweenthe facts found and the choice made,” Burlington Truck Lines, 371U.S. at 168, explaining why the rate chosen “is based on the bestavailable information and establishes antidumping margins as accu-rately as possible.” Shakeproof Assembly Components, Div. of Ill. ToolWorkers, Inc. v. United States, 268 F.3d 1376, 1382 (Fed. Cir. 2001).For the reasons given below, based on the record here, Commerce’sdecision to assign dumping margins to Plaintiffs based only on therates they were assigned in prior proceedings does not meet thisstandard.

To determine the dumping margin for non-mandatory respondentsin NME cases (that is, to determine the “separate rates” margin),Commerce normally relies on the “all others rate” provision of 19U.S.C. § 1673d(c)(5). See Issues & Decision Mem. 18–19. This subsec-tion provides a general rule and an exception for determining suchrates. The general rule states that “the estimated all-others rate shallbe an amount equal to the weighted average of the estimatedweighted average dumping margins established for exporters andproducers individually investigated, excluding any zero and de mini-mis margins, and any margins determined entirely under section1677e [determinations on the basis of facts available].” 19 U.S.C. §1673d(c)(5)(A).

The exception found in 19 U.S.C. § 1673d(c)(5)(B) applies in caseswhere, as here, the dumping margins established for all individuallyinvestigated exporters or producers are zero or de minimis. In suchcases, the agency “may use any reasonable method to establish theestimated all-others rate for exporters and producers not individuallyinvestigated, including averaging the estimated weighted averagedumping margins determined for the exporters and producers indi-vidually investigated.” 19 U.S.C. § 1673d(c)(5)(B) (emphasis added).Commerce therefore is not precluded from following the method thatit used in the Preliminary Results, where it assigned the weightedaverage of the mandatory respondents’ rates to the Plaintiffs, result-


ing in their being assessed a de minimis rate. See Preliminary Re-sults, 73 Fed. Reg. at 12,135. Rather, as a legal matter, Commercemay choose to include or to exclude the mandatory respondents’ zeroor de minimis margins in calculating a separate rate. See 19 U.S.C. §1673d(c)(5)(B).

All parties agree that the mandatory respondents are presumed tobe representative of the respondents as a whole; consequently, theaverage of the mandatory respondents’ rates may be relevant to thedetermination of a reasonable rate for the separate rate respondents.More particularly, that the mandatory respondents in the currentreview were found not to be engaged in dumping was evidence indi-cating that the responding separate rate Plaintiffs may also no longerbe engaged in dumping.

This conclusion is bolstered by other recent investigations ofshrimp producers and exporters from Vietnam. In the First Admin-istrative Review of the underlying dumping order, for example, re-spondents Fish One and Grobest each received zero rates. CertainFrozen Warmwater Shrimp from the Socialist Republic of Vietnam, 72Fed. Reg. 52,052, 52,054 (Dep’t Commerce Sept. 12, 2007) (finalresults of first antidumping duty administrative review and first newshipper review). Thus there is at least some evidence to suggest thatVietnamese shrimp producers changed their pricing behavior so as tocomply with the antidumping order, as is the intention of such orders.Whether or not this evidence alone is sufficient to compel a conclusionthat only a de minimis rate could reasonably be applied to the sepa-rate rate Plaintiffs, it is evidence on the record in support of thereasonableness of such application.

That Commerce has, in the past, awarded separate rate respon-dents the weighted average of the mandatory respondent rates, evenwhen all of the mandatory respondent rates are de minimis, supportsthis conclusion. See Brake Rotors From the People’s Republic ofChina, 73 Fed. Reg. 32,678 (Dep’t Commerce June 10, 2008) (finalresults of 2006–2007 administrative and new shipper review andpartial rescission of 2006–2007 administrative review), and accom-panying Issues and Decision Memorandum, A–570–846, AR & NSR04/01/06-03/31/07 (June 10, 2008), available at http://ia.ita.doc.gov/frn/summary/PRC/E8-13001-1.pdf (last visited Sept. 23, 2009); Honeyfrom Argentina, 72 Fed. Reg. 73,763 (Dep’t Commerce Dec. 28, 2007)(preliminary results of antidumping duty administrative review andintent not to revoke in part) & 73 Fed. Reg. 24,220, 24, 221 (Dep’tCommerce May 2, 2008) (final results of antidumping duty adminis-


trative review and determination not to revoke in part) (leavingseparate rate determination unchanged).15

Nonetheless, when the weighted average of all exporters and pro-ducers individually investigated is zero or de minimis, Commerce isnot required to use such weighted average as the separate or all-others rate, provided that it uses another “reasonable method toestablish the estimated all-others rate.” 19 U.S.C. § 1673d(c)(5)(B).The question before the court, therefore, is whether there is substan-tial evidence to support Commerce’s choice to assign to Plaintiffs arate from the original underlying investigation, or from the FirstReview — i.e., whether that determination was reasonable based onthe record before us.16 Because Commerce’s choice must be reason-able given the record as a whole, Nippon Steel, 458 F.3d at 1351, suchchoice requires evidence which a reasonable mind could find suffi-cient to offset the evidence supporting Commerce’s assignment of deminimis rates to the cooperative uninvestigated respondents in thepreliminary investigation results.

Commerce, however, has not provided us with sufficient evidenceon the record which could justify ignoring the evidence in favor ofassigning a de minimis rate to Plaintiffs and which would support asreasonable the alternative rate chosen. Nor has Commerce articu-lated a clear justification for choosing the dumping margins that itassigned. While relying on 19 U.S.C. § 1673d(c)(5)(B), see Issues &Decision Mem. at 19, “Commerce abandoned the methodology [involv-ing] weight-averaging the estimated dumping margins of the Fully-Investigated Respondents[] even though that method is specificallyprovided for in . . . 19 U.S.C. § 1673d(c)(5)(B)[].” Yantai Oriental JuiceCo. v. United States, 27 CIT 477, 487 (2003) (citation omitted). Thesole reasoning that the Department provided for this decision was

15 Commerce seeks to distinguish these decisions, arguing that the companies concernedtherein were “fairly homogenous” and that no rates in those cases were determined on thebasis of total or adverse facts available. (Def.’s Resp. to Pls.’ Mots. for J. Upon Admin. R. 26(“Def.’s Resp.”).) But Commerce ignores its own decision here, as in these prior decisions, toselect mandatory respondents to represent the practice in the industry.16 In its briefing of this issue, Commerce relies on the decision of the court in LongkouHaimeng Mach. Co. v. United States, __CIT__, 581 F. Supp. 2d 1344 (2008). (Def.’s Resp. 18.)In Longkou, the court affirmed Commerce’s choice to exclude from the separate ratedetermination any zero or de minimis rates, in light of the statute’s clear grant of permis-sion for such a choice. Longkou, __ CIT at __, 581 F. Supp. 2d at 1357–60. The issue here,however, is not the exclusion of zero or de minimis rates, but whether there is evidence tosupport Commerce’s selected rate as reasonable considering the record as a whole. Impor-tantly, in Longkou, in determining the rate to be applied to the non-selected respondents,Commerce assigned the non-selected, cooperative respondents a weighted-average percent-age margin based on the calculated margins of the other mandatory respondents. Longkou,581 F. Supp. at 1354, 1358.


that thirty-five companies received margins based on AFA and that“the circumstances of this review are similar to those of the precedingreview,” Final Results, 73 Fed. Reg. at 52,275; Issues & Decision Mem.at 19, thereby explaining the use of margins established during theFirst Review for Fish One and Grobest and those established duringthe initial investigation for all other respondents.

But the Department’s reference to the existence of thirty-five addi-tional, non-cooperating companies named in the Second Review —who did not submit separate rate applications or file any other papersand were therefore assigned rates based on adverse facts available17

— fails to justify its choice of dumping margin for the cooperativeuninvestigated respondents. As this court indicated in Yantai, there isno basis in the statute for penalizing cooperative uninvestigatedrespondents due solely to the presence of non-cooperative uninvesti-gated respondents who receive a margin based on AFA. See Yantai, 27CIT at 487. While under the “facts available” section of the antidump-ing statute, 19 U.S.C. § 1677e(b)(2),(3), Commerce may assign, tonon-cooperating companies, dumping margins that are based on priorinvestigations, this section is only applicable when a party, “(A) with-holds information that has been requested by the administering au-thority,” “(B) fails to provide such information by the deadlines forsubmission of the information or in the form and manner requested”,or “(C) significantly impedes a proceeding under this title.” 19 U.S.C.§ 1677e(a). None of these factors apply in this case, and Commercehas not stated that any of the Plaintiffs were non-cooperative. SeeFinal Results, 73 Fed. Reg. at 52,274. Therefore, 19 U.S.C. § 1677edoes not provide a basis for the Department’s use of results from aprior determination with respect to the cooperating companies in thepresent case.

With respect to the second ground offered in support of Commerce’schosen methodology — that “the circumstances of this review aresimilar to those of the preceding review,” Final Results, 73 Fed. Reg.at 52,275; Issues & Decision Mem. at 19 — the court notes that at oralargument, the Government observed that there were two mandatoryrespondents in the First Review who chose not to participate and whoreceived AFA rates as a result. See also Certain Frozen WarmwaterShrimp from the Socialist Republic of Vietnam, 72 Fed. Reg. 10,689,10,691–93 (Dep’t Commerce Mar. 9, 2007) (preliminary results of firstantidumping duty administrative review and new shipper review).17 See 19 U.S.C. § 1677e(b) (“If the [agency] finds that aninterested party has failed tocooperate . . . [the agency] may use an inference that is adverse to the interests of that partyin selecting from among the facts otherwise available.”). As noted by Plaintiffs, there issome reason to doubt that these non-cooperating companies, if they exist at all, export to theUnited States to any substantial degree. We may leave that aside for now.


While the court takes no position as to the weight of this evidence, wenote that, as mandatory respondents are selected to be representativeof the industry, there is thus some evidence in the record that, at leastduring the POR in the First Review, could support an inference thatdumping of the subject merchandise from Vietnam was continuing.

Nevertheless, nowhere in the record does Commerce provide suffi-cient reasoning linking the evidence to its conclusion that marginsestablished for past periods of review, and especially those estab-lished during the period of investigation, prior to the imposition of theantidumping duty order, are “based on the best available informationand establish[] [the relevant] antidumping margins as accurately aspossible.” Shakeproof, 268 F.3d at 1–82. As noted above, in Chenery,332 U.S. at 196, the Supreme Court stressed the “simple but funda-mental rule of administrative law” that:

[A] reviewing court, in dealing with a determination or judg-ment which an administrative agency alone is authorized tomake, must judge the propriety of such action solely by thegrounds invoked by the agency. If those grounds are inadequateor improper, the court is powerless to affirm the administrativeaction by substituting what it considers to be a more adequate orproper basis.

Id. Further, “[i]f the administrative action is to be tested by the basisupon which it purports to rest, that basis must be set forth with suchclarity as to be understandable[;] [i]t will not do for a court to becompelled to guess at the theory underlying the agency’s action.” Id.at 196–97. On the record before us, no adequate explanation is pre-sented and, accordingly, the court declines to read into the record ajustification which Commerce itself did not provide.

On remand, therefore, Commerce must either assign to Plaintiffsthe weighted average rate of the mandatory respondents, or else mustprovide justification, based on substantial evidence on the record, forusing another rate.

Conclusion

Accordingly, this matter is remanded to the agency for furtherconsideration in accordance with this opinion. Commerce shall haveuntil December 29, 2009 to complete and file its remand redetermi-nation. Plaintiffs shall have until January 29, 2010 to file comments.Defendant and Defendant-Intervenors shall have until February 15,2010 to file any reply.

It is SO ORDERED.


Dated: September 29, 2009New York, N.Y.

/s/ Donald C. PogueDONALD C. POGUE, JUDGE

◆

Slip Op. 09–107

DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff, v. UNITED

STATES, Defendant, and ST. GOBAIN ABRASIVES, INC., EHWA DIAMOND

INDUSTRIAL CO., LTD., AND SHINHAN DIAMOND INDUSTRIAL CO., LTD.,Defendant-Intervenors.

Before: Musgrave, Senior JudgeCourt No. 06–00247

DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff, v. UNITED

STATES, Defendant, and SAINT-GOBAIN ABRASIVES, INC., HEBEI JIKAI

INDUSTRIAL GROUP CO., LTD., HUSQVARNA CONSTRUCTION PRODUCTS

NORTH AMERICA, INC., EHWA DIAMOND INDUSTRIAL CO., LTD., andBOSUN TOOLS GROUP CO., LTD., Defendant-Intervenors.

Court No. 09–00110

[Granting application for a writ of mandamus as to the U.S. Department of Com-merce and denying as moot the mandamus action as to the U.S. International TradeCommission, this decision combines two separate matters, more specifically identifiedin the foregoing captions, due to their having similar and interrelated questions of law.While it may appear inconsistent that the court herein reaches two different conclu-sions as to the two separate writs of mandamus requested, this apparent anomaly isdictated by different aspects of the law.]

Dated: Dated: September 30, 2009

Wiley, Rein & Fielding LLP (Daniel B. Pickard), for the plaintiff.James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel,

Office of the General Council, U.S. International Trade Commission (Charles A. St.Charles), for the defendant U.S. International Trade Commission.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E.White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S.Department of Justice, (Delisa M. Sanchez); Office of the Chief Counsel for ImportAdministration, U.S. Department of Commerce (Mark B. Lehnardt), Of Counsel, forthe defendant U.S. Department of Commerce.

Akin Gump Strauss Hauer & Feld LLP (Spencer S. Griffith, J. David Park, JarrodM. Goldfeder, Lisa W. Ross, and Valerie A. Slater), for the defendant-intervenors EhwaDiamond Industrial Co., Ltd. and Shinhan Diamond Industrial Co., Ltd.

Fischer Fox Global PLLC (Lynn M. Fischer Fox), for the defendant-intervenorSaint-Gobain Abrasives, Inc.

Alston & Bird, LLP (Kenneth G. Weigel and Elizabeth M. Hein), for the defendant-intervenors Hebei Jikai Industrial Group Co., Ltd., and Husqvarna ConstructionProducts North America, Inc.

deKeiffer & Horgan (Gregory S. Menegaz), for the defendant-intervenor Bosun ToolsGroup Co., Ltd.


OPINION AND ORDER

Musgrave, Senior Judge:

I.Introduction

Before the court are two applications for relief in the nature of writsof mandamus instituted by the plaintiff Diamond Sawblades Manu-facturers Coalition (“DSMC”), one of which (Court No. 06–00247)seeks to compel the United States International Trade Commission(“ITC” or the “Commission”) to publish notice of its affirmative re-mand determination in the Federal Register as a legal consequence ofthis court’s judgment in Diamond Sawblades Mfr’s Coalition v.United States, Slip Op. 09–5, 2009 WL 289606 (CIT Jan. 13, 2009)(“Slip Op. 09–5”) (sustaining the ITC’s affirmative remand determi-nation), and the other (Court. No. 09–00110) seeking to compel theInternational Trade Administration, United States Department ofCommerce (“Commerce” or the “Department”) to issue antidumpingduty orders and order the collection of cash deposits. Both mattersconcern the question of whether, absent a stay, the ITC and Com-merce are legally obligated to effectuate the decisions of this Court ifthe case has been appealed. For the reasons set forth below, the courtconcludes that they must. The court will grant the plaintiff ’s re-quested relief as to Commerce, but will deny the request, on theground of mootness, as to the ITC.

II.Background

A. Statement of Facts

Some familiarity with Court No. 06–00247 is presumed. In July2006, the ITC published its final determination that a domestic in-dustry was not materially injured, or threatened with material injury,by reason of imports of diamond sawblades from China and Korea.Diamond Sawblades and Parts Thereof From China and Korea, 71Fed. Reg. 39,128 (ITC) (July 11, 2006) (“Original Determination”).DSMC, a domestic industry coalition of diamond-sawblade manufac-turers, challenged the ITC’s final negative injury determination inthis Court.1 In reviewing the determination, the court found that the

1 In an antidumping duty investigation, Commerce determines whether a product is beingsold in the United States at less than fair value (i.e., “dumped”), and the U.S. InternationalTrade Commission (“ITC”) determines whether an industry in the United States is mate-rially injured or threatened with material injury. 19 U.S.C. § 1673. Pursuant to the


ITC had failed to provide an adequate explanation or substantialevidentiary support for certain findings. The court remanded thematter to the ITC and instructed the Commission to reconsider andexplain more fully its negative-injury determination in light of thecourt’s opinion. Diamond Sawblades Mfr’s Coalition v. United States,Slip Op. 08–18 2008 WL 576988 (Feb. 6, 2008). On remand, theCommission considered the court’s instructions and reopened therecord for the purpose of collecting additional information. It thenconsidered the new information it gathered and issued a new decisionon May 14, 2008. In that decision, the Commission again found thatthe domestic industry was not materially injured by reason of subjectimports but reversed its position on the issue of threat-of-material-injury. Diamond Sawblades and Parts Thereof from China and Korea,Investigation Nos. 731–TA–1092 and 1093 (Final) (Remand), USITCPub. 4007 (May 2008) (“Remand Determination”). The court sus-tained the Remand Determination on January 13, 2009. DiamondSawblades, Slip Op. 09–5.

On January 22, 2009, the ITC notified Commerce that this courthad issued a final decision sustaining the ITC’s affirmative RemandDetermination and that the court’s decision was “‘not in harmonywith’ the Commission’s original negative injury determination.” Pub.Doc. No. 3 at 1 (Court No. 09–110). As directed by 19 U.S.C. §1516a(c)(1) and Timken Co. v. United States, 893 F.2d 337, 341 (Fed.Cir. 1990), Commerce published notice of the court’s decision in theFederal Register on February 10, 2009. See Diamond Sawblades andParts Thereof from the People’s Republic of China and the People’sapplicable statutory provisions, if the ITC makes an affirmative preliminary injury deter-mination, Commerce then issues its preliminary and final dumping determinations. IfCommerce makes a preliminary determination that merchandise is being dumped, Com-merce must suspend liquidation pending completion of the investigation. 19 U.S.C. §1671b(d)(2). In these instances, Customs will not know the exact amount to assess, asantidumping duty, at the time when the goods are actually entered, because the duty isnecessarily determined after the goods enter the United States. See 19 C.F.R. § 351.213(a).Accordingly, to secure payment of antidumping duties, an importer must make cash depos-its of the estimated duties at the time of entry. 19 U.S.C. §§ 1673b(d)(1)(B), 1671d(c)(1)(B)(ii), 1671 e(a)(3). At liquidation Customs collects any additional fees due or refundsexcess moneys deposited, together with interest. 19 U.S.C. § 1505(b).

If Commerce finds that dumping has occurred in its final determination, the ITC mustmake a final determination as to whether the domestic industry has been materiallyinjured or threatened with material injury as a result of the dumped imports. See 19 U.S.C.§§ 1673, 1673b, 1673d. If the ITC’s final determination is affirmative, Commerce mustpublish an antidumping duty order “[w]ithin 7 days after being notified by the Commissionof an affirmative determination under section 1673d(b).” 19 U.S.C. § 1673e(a). If the ITC’sfinal determination is negative, however, the investigation terminates, and Commerce isrequired to terminate the suspension of liquidation of entries, release bonds and securities,and refund cash deposits. 19 U.S.C. § 1673d(c)(2).


Republic of Korea: Notice of Court Decision Not In Harmony WithFinal Determination of the Antidumping Duty Investigations (Com-merce Dept.) 74 Fed. Reg. 6570 (Feb. 10, 2009) (“Timken Notice”). Inthe Timken Notice, Commerce stated that liquidation of subject im-port entries would be suspended within ten days of that notice, andthat an antidumping duty order would be issued if notified by the ITCthat Slip Op. 09–5 “is not appealed or is affirmed on appeal.” Id.

Shortly after publication of the Timken Notice, DSMC submitted aletter to Commerce suggesting that, in addition to suspension ofliquidation, Commerce should order the collection of cash deposits.Pub. Doc. 2 (Court No. 09–110). The Department responded that itwould not order the collection of cash deposits until issuance of a finaland conclusive court decision and that “[t]he Department interpretsTimken to require suspension of liquidation, but not to direct theDepartment to require cash deposits on or after the date of thenotice.” Department of Commerce (“DOC”) Mem. at 4.

In a similar correspondence with the ITC, DSMC requested that theCommission publish notice of the affirmative Remand Determinationin the Federal Register. DSMC noted that although the ITC had, in asimilar case, delayed notice publication until all appeals had beenexhausted, delay was not appropriate in the current matter. DSMCasserted that 19 U.S.C. § 1673(d) “requires the Commission to alsopublish a notice in the Federal Register regarding the remand deter-mination[; therefore] . . . we ask that the Commission publish such anotice in order to dispel serious confusion that has arisen with respectto the relief due to the domestic industry in this case . . . .” DSMCLetter, ITC Mem. at Attach. B.

On March 13, 2009, the defendant-intervenors Ehwa Diamond In-dustrial Co., Ltd., and Saint-Gobain Abrasives, Inc., filed notices ofappeal in the U.S. Court of Appeals for the Federal Circuit (“FederalCircuit”). The ITC did not appeal. As promised in the Timken Notice,Commerce did not publish an antidumping duty order and did notdirect the collection of cash deposits. Further, in a letter dated April9, 2009, the Commission informed DSMC that, inter alia, it disagreedwith DSMC’s interpretation of section 1673d(d) and that it would notpublish notice of its Remand Determination at that point in time. ITCMem. at Attach D. Thereafter, DSMC filed in this court a petition fora writ of mandamus (Court No. 09–00110) to compel the Departmentof Commerce to issue antidumping duty orders and to require thecollection of cash deposits in the respective investigations. One weeklater DSMC filed in this court a second application for a writ ofmandamus (Court No. 06–00247) to compel the ITC to publish noticeof the affirmative Remand Determination in the Federal Register.


B. Arguments of the Parties

1. ITC Action (Court No. 06–00247)

Before the court DSMC argues that it is clearly and indisputablyentitled to the relief it seeks because “[t]he Tariff Act of 1930 statesthat whenever the ITC makes a final threat of material injury deter-mination under [section] 1673d(b), it ‘shall publish notice of its de-termination in the Federal Register.’” DSMC (No. 06–00247) Mem. at3–4 (quoting 19 U.S.C. § 1673d(d)). DSMC contends that it has noother means to obtain relief because publication of notice of theaffirmative determination is “necessary to effectuate this court’s judg-ment.” Id. at 1. This is so, DSMC contends (and the defendant-intervenors concur), because 19 U.S.C. § 1673e(b)(2) specifies thatwhen the ITC’s determination is affirmative for threat-of-material-injury only, antidumping duties may not be assessed for any timeperiod prior to the date of publication. Under this scheme, arguesDSMC, the ITC’s refusal to publish notice of the affirmative RemandDetermination until after all appeals have been decided (which maytake almost two years) fundamentally diminishes the relief to whichit is legally entitled.

The ITC presents two central arguments as to why it does not havea current duty to publish notice of the Remand Determination. First,the ITC contends that delaying publication of remand determinationsis consistent with the requirements of the statutory scheme. Accord-ing to the Commission, “two separate sets of statutory provisionsgovern the publication of Commission and Commerce determina-tions, depending on whether the determinations were issued duringan antidumping investigation or a court action.” ITC Mem. at 9. TheCommission maintains that section 1673d, which provides many ofthe procedural requirements governing investigations at the admin-istrative level (e.g., time limits, consequences of preliminary and finaldeterminations), only governs procedures in the context of the origi-nal investigation. Accordingly, says the ITC, the publication require-ment provided in section 1673d is, likewise, a procedure that appliesonly to the original final determination that resulted from theadministrative-level investigation. ITC Mem. at 11.

On the other hand, the ITC explains, publication in the context ofjudicial review is governed by sections 1516a(c) and (e). Those provi-sions “specify” that when the ITC issues a remand determinationadverse to the original determination that is subsequently affirmedby the Court of International Trade (“CIT”), the only publicationrequired at that point is governed by section 1516a(c)(1). Conse-quently, notes the ITC, section 1516a(c)(1) provides that Commerce,


not the ITC, must publish notice of a court decision “not in harmony”with the original determination. ITC Mem. at 12.

Second, the ITC argues that DSMC is simply not entitled to therelief it seeks because the type of publication it requests is tanta-mount to treating the court’s decision as “final and conclusive”2 andthat, contrary to DSMC’s allegations, “the Federal Circuit has con-sistently stated that a remand determination . . . is not to be given fulland final effect until the end of [] all appellate proceedings, even if theCourt of International Trade has affirmed the determination.” ITCMem. at 14–15 (citing Timken Co. v. United States, 893 F.2d 337 (Fed.Cir. 1990). The Commission argues further that section 1516a(c)(3)states expressly that the agencies (involved) may not take action toeffectuate an adverse court decision until the matter has been re-manded to the agency pursuant to a final and conclusive court deci-sion. According to the ITC, section 1516a(c)(3) provides “that thecourts may only remand the matter to the Commission for ‘dispositionconsistent with the final disposition of the court’ only after there hasbeen a ‘final disposition of {the} action . . . {that} is not in harmonywith the published {original} determination of . . . the Commission.’”ITC Mem. at 13 (quoting 19 U.S.C. § 1516a(c)(3)) (ITC’s alterations).In other words, the ITC maintains that because the court’s decision inSlip Op. 09–5 is pending appeal before the Federal Circuit, the ITChas no duty to effectuate that decision (by publishing notice of theaffirmative Remand Determination) until the matter has been re-manded pursuant to a final and conclusive decision on the appeal.

Finally, the ITC argues that, even if this court disagrees with theITC’s interpretation of the statutory scheme, the court must defer tothat interpretation because it is reasonable. The Commission notesthat, pursuant to the doctrine set forth in Chevron, “a reviewing courtmust accord substantial weight to the Commission’s reasonable in-terpretation of the statute it administers.” ITC Mem. at 19 (referenc-ing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837 (1984)); see also Def.-Int.’s (Court No. 06–00247) JointOpp. at 13.

2. Commerce Action (Court No. 09–00110)

DSMC asserts that, pursuant to 19 U.S.C. §§ 1673d(c)(2) and1673e(a), Commerce’s obligation to issue and publish antidumpingduty orders and collect cash deposits was triggered when it received

2 Throughout this opinion, the court will use the phrase “final and conclusive” to describethe type of finality that occurs when a court decision is no longer subject to appeal, asopposed to the type of finality that simply “ends the litigation on the merits and leavesnothing for the court to do but execute the judgment.” St. Louis I.M. & S.R. Co. v. SouthernExpress Co., 108 U.S. 24, 28 (1883)).


the ITC’s notice that this court had issued a final decision sustainingthe affirmative Remand Determination. DSMC No. 09–00110 Mem.at 5–6. See 19 U.S.C. § 1673d(c)(2) (requiring Commerce to issue anantidumping duty order if the ITC and Commerce both issue affir-mative final determinations) and 1673e(a) (requiring Commerce topublish an antidumping duty order “[w]ithin seven days after beingnotified by the Commission of an affirmative determination under1673d(b)”). DSMC contends further that in Decca Hospitality Fur-nishings, LLC v. United States, 30 CIT 357, 427 F. Supp. 2d 1249(2006), the Court established that a remand determination legallyreplaces the original determination, and that Commerce is obligatedto take action in accordance with a final determination regardless ofwhether it was issued in the original investigation or pursuant to acourt-ordered remand. DSMC thus asserts that the Department’sfailure to issue antidumping duty orders and collect cash depositscontravenes its statutory obligation under § 1673e(a), fails to give fulleffect to the judgment of this court, “and denies [DSMC] relief towhich it has an indisputable right.” DSMC No. 09–00110 Mem. at 3.

Commerce argues that it presently has no authority to publishantidumping duty orders or to require the posting of cash deposits inthis case. Commerce asserts that it “derives its statutory authority topublish an antidumping duty order from its receipt of notice from theITC of its final affirmative injury determination,” and that, althoughit had received the ITC’s notice that the affirmative Remand Deter-mination had been sustained by a final court decision, that notice wasissued for the “sole purpose” of enabling Commerce to publish theTimken Notice. DOC Mem. at 10. “Nowhere in the letter,” statesCommerce, “does the ITC state that the Remand Determination con-stitutes a section 1673d(b) ‘final determination’ of affirmative injury,as required by section 1673e(a) before Commerce may publish anorder.” Id.

Commerce further notes that, other than Decca, DSMC is unable toprovide any support for its position that the Department has a dutyto instruct the collection of cash deposits prior to a conclusive courtdecision. DOC Mem. at 11. The Department contends that “the hold-ing in Decca — that Commerce was required to adjust the cashdeposit rate to the rate determined in an involuntary remand deter-mination relating to a case that had been appealed to the FederalCircuit — was erroneously based upon a misreading of Timken” andshould be disregarded. It asserts further that, contrary to DSMC’sarguments and the “aberrant” Decca opinion, “[t]he Timken courtexplicitly stated” that when a CIT decision that is “adverse” to the


original agency determination is appealed, the sole effect of the CIT’sdecision is the suspension of liquidation. DOC Mem. at 13 (citationsomitted). Commerce claims to be

[un]aware of any case in which any court has held that Com-merce has a clear duty to treat a decision of this Court as a“final” and “conclusive” decision during the pendency of an ap-peal to the Federal Circuit. As Timken made clear, a decision ofthis Court not in harmony with the agency determinationmerely removes the agency’s presumption of correctness.

Id.Finally, Commerce asserts that denying the writ of mandamus

would be “the right outcome because suspension of liquidation pre-serves the status quo and parties’ substantive rights to the eventualoutcome while the agency’s determination is no longer presumedcorrect and the conclusive outcome is uncertain.” DOC Mem. at 21.

For the most part, the defendant-intervenors echo the argumentsset forth by the Commission and Commerce, adding that DSMC doesnot have a clear and indisputable right to the relief it seeks fromeither agency because the ITC’s Remand Determination is not a “finaldecision.” The defendant-intervenors further echo that DSMC’s argu-ments are essentially unsupported because they are premised uponthe “aberrant Decca case.” Def.-Int’s (Court No. 06–00247) Joint Opp.at 15–16. They assert that the Federal Circuit’s decisions in Timkenand Hosiden Corp. v. Advanced Display Manufacturers of America, 85F.3d 589 (Fed. Cir. 1996) clearly establish that Decca was based upona misreading of Timken and that, contrary to the observations setforth in that opinion, “the Commission’s remand determination doesnot replace the original determination until the end of all appellateproceedings.” Def.-Int’s (Court No. 09–00110) Joint Resp. at 16.

III.Jurisdiction and Standard of Review

This court has “exclusive jurisdiction of any civil action commencedunder section 516A of the Tariff Act of 1930.” 28 U.S.C. § 1581(c).Because the court has jurisdiction to determine the effect of, andenforce its own judgments, the court retains jurisdiction over theaction to decide the current mandamus actions. Without the power toenforce its judgments, “[t]he judicial power would be incomplete, andentirely inadequate to the purposes for which it was intended.” Bankof the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53 (1825).

This court possesses all the powers in law and equity of, or asconferred by statute upon, a district court of the United States. 28U.S.C. § 1585. The powers conferred by statute upon the district


courts include supplemental jurisdiction provided in 28 U.S.C. §1367(a) and mandamus jurisdiction set forth in 28 U.S.C. § 1361(providing that “[t]he district courts shall have original jurisdiction ofany action in the nature of mandamus to compel an officer or em-ployee of the United States or any agency thereof to perform a duty-owed to the plaintiff.”). Section 1367 further provides that in any civilaction where district courts have original jurisdiction, those courtsshall have supplemental jurisdiction over all other claims that are sorelated to claims in the action within its original jurisdiction thatthey form part of the same case or controversy. 28 U.S.C. § 1367(a).

IV.Discussion

The common-law writ of mandamus, as codified in 28 U.S.C. §§1361, 1651(a) (2006), is a drastic remedy, “to be invoked only inextraordinary situations.” Kerr v. U. S. Dist. Ct. N.D. Cal., 426 U.S.394, 402 (1976). Because a writ of mandamus is “one of the mostpotent weapons in the judicial arsenal,” Cheney v. United States Dist.Court for D.C., 542 U.S. 367, 380 (2004), three conditions must be metbefore the court may issue a writ. First, the petitioner must demon-strate a clear and indisputable right to the writ. Second, the peti-tioner must demonstrate that he or she lacks adequate alternativemeans to obtain the desired relief. And third, “even if the first twoprerequisites have been met, the issuing court, in the exercise of itsdiscretion, must be satisfied that the writ is appropriate under thecircumstances.” Cheney, 542 U.S. at 380–81.

A. DSMC’s Clear and Indisputable Right to the Writ

The defendants contend that DSMC does not have a “clear andindisputable” right to the writs because neither the ITC nor Com-merce has a duty to perform the actions that DSMC seeks. Thedefendants assert that, except for suspension of liquidation, the de-cisions of this court are to be given no effect if the case has beenappealed to the Federal Circuit. For the reasons set forth below, thisproposition must be rejected.

1. Disposition of Judicial Decisions Pending Appeal

“We begin with the basic proposition that all orders and judgmentsof courts must be complied with promptly.” Maness v. Meyers, 419U.S. 449, 458 (1975). If a litigant believes the judgment is incorrect,“the remedy is to appeal, but, absent a stay, he must comply promptlywith the order pending appeal.” Id. (emphasis added). The principlethat all orders and judgments of courts must be complied withpromptly is fundamental to the expeditious and efficient administra-


tion of justice by the courts. United States v. United Mine Workers,330 U.S. 258, 293 (1947). See also Smith Corona v. United States, 915F.2d 683, 688 (Fed. Cir. 1990). In enacting the Customs Courts Act of1980, Congress confirmed the status of this Court as one “establishedunder Article III of the Constitution of the United States,” and em-powered the Court with the same plenary powers in law and equity asthose possessed by the United States district courts. 28 U.S.C. §§ 251,1585, 2643(c)(1).

It is without debate that liquidation must await a final and conclu-sive decision on the matter, and that, as a result, the filing of anappeal essentially stays the effect of the court’s decision as far asliquidation is concerned. But the defendants here advocate that therelevant statutes and caselaw should be interpreted to expand this“stay” to encompass all other legal consequences of the court’s finaldecision. The practical effect of this interpretation (which defendantsdo not dispute) would mean that the filing of an appeal by any partyessentially nullifies the judgments of this Court to the status ofadvisory opinions rendered for the purpose of nondeferential FederalCircuit review. On its face, such an interpretation appears contrary tothe express intent of Congress to expand the powers of this Court andto provide expeditious judicial review in antidumping cases. In theabsence of clear and express statutory language, it cannot be acceptedthat Congress intended that appealed decisions of this Court wouldnot demand the same fundamental compliance that is to be accordeddecisions rendered by the district courts. Accord Isbrandtsen Co. v.Johnson, 343 U.S. 779, 783 (1952) (holding that “[s]tatutes whichinvade the common law . . . are to be read with a presumptionfavoring the retention of long-established and familiar principles,except when a statutory purpose to the contrary is evident.”).

2. 19 U.S.C. § 1516a(c) & (e): Effects of Judicial Review

The defendants’ arguments focus primarily on 19 U.S.C. §§ 1516a(c)and (e), which provide, in pertinent part:

(c) Liquidation of entries.(1) Liquidation in accordance with determination.

Unless such liquidation is enjoined by the court underparagraph (2) of this subsection, entries of merchandise of thecharacter covered by a determination of the Secretary, theadministering authority, or the Commission contested undersubsection (a) shall be liquidated in accordance with thedetermination of the Secretary, the administering authority, orthe Commission, if they are entered, or withdrawn fromwarehouse, for consumption on or before the date of publicationin the Federal Register by the Secretary or the administeringauthority of a notice of a decision of the United States Court of


International Trade, or of the United States Court of Appeals forthe Federal Circuit, not in harmony with that determination.Such notice of a decision shall be published within ten days fromthe date of the issuance of the court decision.(2) Injunctive relief.

In the case of a determination described in paragraph (2) ofsubsection (a) by the Secretary, the administering authority, orthe Commission, the United States Court of International Trademay enjoin the liquidation of some or all entries of merchandisecovered by a determination of the Secretary, the administeringauthority, or the Commission, upon a request by an interestedparty for such relief and a proper showing that the requestedrelief should be granted under the circumstances.(3) Remand for final disposition.

If the final disposition of an action brought under this sectionis not in harmony with the published determination of theSecretary, the administering authority, or the Commission, thematter shall be remanded to the Secretary, the administeringauthority, or the Commission, as appropriate, for dispositionconsistent with the final disposition of the court.* * *

(e) Liquidation in accordance with final decision.

If the cause of action is sustained in whole or in part by adecision of the United States Court of International Trade or ofthe United States Court of Appeals for the Federal Circuit—

(1) entries of merchandise of the character covered by thepublished determination of the Secretary, the administeringauthority, or the Commission, which is entered, or withdrawnfrom warehouse, for consumption after the date of publication inthe Federal Register by the Secretary or the administeringauthority of a notice of the court decision, and

(2) entries, the liquidation of which was enjoined undersubsection (c)(2) of this section,

shall be liquidated in accordance with the final court decision inthe action. Such notice of the court decision shall be publishedwithin ten days from the date of the issuance of the courtdecision.

19 U.S.C. §§ 1516a(c), (e).The Commission asserts that it owes no duty to the plaintiff be-

cause “the Federal Circuit has consistently stated that, under [sec-tions] 1516a(c) [and] (e), a remand determination is not to be givenfinal and conclusive effect until the end of the entire appellate pro-cess, even if the Court of International Trade has sustained thatdetermination.” ITC Mem. at 22. The Commission’s assertions arebeside the point, however, because contrary to the implications of this


argument, requiring prompt compliance with the court’s judgment isnot synonymous with “treatment of that judgment as final and con-clusive.” As noted above, it is well established that under section1516a(e), liquidation must await a final and conclusive decision onthe matter. The defendants, however, and with little support, inten-tionally conflate liquidation with any and all other effects that flow asa consequence of the court’s decision.

The fact that liquidation must await a final and conclusive courtdecision does not imply that all other legal obligations resulting fromthe court’s decision must likewise await a conclusive decision. Liqui-dation for customs duty purposes is the “final computation or ascer-tainment of duties . . . accruing upon entry” of goods from abroad intothe United States. 19 U.S.C. § 1500(d). See Norsk Hydro Can., Inc. v.United States, 472 F.3d 1347, 1351 (Fed. Cir. 2006). Final liquidationoccurs only once for each entry of goods, and as a general principlemay not be subsequently undone.3 See Cambridge Lee Indus. v.United States, 916 F.2d at 1579 (Fed. Cir. 1990) (holding that “[o]ncean entry has been liquidated, the duties paid cannot be recoveredeven if the payor subsequently prevails in its challenge to the anti-dumping order.”); Zenith Radio Corp. v. United States, 710 F.2d 806,810 (Fed. Cir. 1983). Liquidation is not the same as the collection ofcash deposits, nor is it the same as issuance of an antidumping dutyorder, and has little to do with the publication notice of anaffirmative-injury determination. The statutes refer to each conceptdistinctly. Compare 19 U.S.C. §§ 1673b(d), 1673d(c)(1)(B)(ii),1673e(a), 1673e(c)(3), 1675, 1673f(b)(2) and 1677g (referring to cashdeposits) with 19 U.S.C. §§ 1500, 1504, 1505, 1514, 1516a and 1520(referring to liquidations) and 1673 (referring to antidumping dutyorders) and 1673d(b) (referring to publication). Accordingly, it is in-appropriate to presume that Congress used the term “liquidation” in19 U.S.C. § 1516a to refer to cash deposits or issuance of an anti-dumping duty order. See SKF USA Inc. v. United States, 263 F.3d1369, 1381 (Fed. Cir. 2001) (noting that “where Congress has includedspecific language in one section of a statute but has omitted it fromanother, related section of the same Act, it is generally presumed thatCongress intended the omission.”). Accordingly, the fact that liquida-tion must await a final and conclusive court decision has no bearingon Commerce’s duty to issue antidumping duty orders or instruct the

3 Consequently, several statutes under Title 19 of the United States Code provide for thesuspension of liquidation, which require expressly, or have been interpreted to require, thatsuspension of liquidation continues until the matter has been finally and conclusivelydecided. See, e.g., 19 U.S.C. §§ 1514; 1516(c)(2).


collection of cash deposits, or on the ITC’s obligations to publishnotice of an affirmative determination.

3. Precedential Interpretation of 19 U.S.C. § 1516a

The most detailed analysis of sections 1516a(c)(1) and (e) is setforth in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), towhich all parties reference as supportive of their positions. InTimken, this Court, after having previously issued a final decisionsustaining the Department’s remand determination, ordered Com-merce to publish (under § 1516a(c)(1)) notice of a court decision “notin harmony” with the original determination. Prior to the mandamusaction, Commerce had refused to publish the notice because it hadinterpreted section 1516a(c)(1) publication to require a final andconclusive decision, and the CIT decision — which was pending ap-peal — was not. Hence, when the mandamus order was appealed, theonly question to be resolved by the Federal Circuit was when (orwhether) Commerce was required to publish a Federal Register noticeof an adverse court decision, regardless of the fact that the case hadbeen appealed. The Federal Circuit affirmed the CIT’s issuance ofmandamus and noted its disagreement with Commerce’s interpreta-tion, stating:

Unless the agency is required to publish notice of a CIT decisionnot in harmony within 10 days of the issuance of the decision(regardless of the time for appeal or of whether an appeal istaken), § 1516a(c)(1) would require that the agency’s determi-nation continue to govern entries even after the CIT’s decision.However, the House Committee report, in discussing § 1516 (a),states that the agency’s determination will govern only thatmerchandise which is “entered prior to the first decision of acourt which is adverse” to that determination.

Timken, 893 F.2d at 340.The Federal Circuit’s analysis of the term “final” as it is used in

section 1516a(c)(1) and (e) was central to its holding in Timken. TheCourt distinguished between the finality that occurs when the dis-trict court “is done with the matter,” and issues final judgment, andthe finality that is achieved when the appellate process has run itscourse and the decision is no longer subject to appeal or collateralattack (i.e., for purposes of this opinion, “final and conclusive,” seenote 2). See 893 F.2d at 339. Although Commerce in that case hadtaken the position that the latter definition applied to its duty topublish notice of a court decision not in harmony with an agency


determination under the judicial review provisions of 19 U.S.C. §§1516a(c)(1) and (e), the Federal Circuit concluded otherwise:

[T]he terms “decision” and “court decision” are used in §1516a(c)(1) and (e) to denote a decision which is final as far asthe rendering court is concerned, even though that decision maybe subject to appeal. In support of this interpretation, we merelypoint to the last sentence of § 1516a(c)(1), which states: “Suchnotice of a decision shall be published within ten days from thedate of the issuance of the court decision.” It is nonsensical tosay that a court decision issues only when the time for appealexpires; a decision issues when judgment is entered. Nor do wefind it credible to say that a CIT decision does not exist until thetime for appeal expires; such an interpretation is contrary toboth the common meaning of the term and its use in statutessuch as 28 U.S.C. § 1295(a)(5) and 28 U.S.C. § 2645.[FN]6

[FN]6. We do, however, agree that a decision must be “final” inthe sense that the CIT has entered final judgment in order torequire publication of notice under § 1516a(c)(1) and (e). This isthe strict holding of Melamine Chemicals, Inc. v. United States,732 F.2d 924 (Fed. Cir.1984) . . . .

Timken, 893 F.2d at 340.In sum, the Timken Court determined that, although the

section1516a(e) liquidation directive required a final and conclusivecourt decision, the publication directed by section 1516a(c)(1) did not:Publication was required if the CIT had issued a final judgment onthe matter — regardless of whether that judgment had been appealed.This case gave rise to the term “Timken Notice,” because it estab-lished the parameters of section 1516a(c)(1) notice-publication. SeeTimken, 893 F. 2d at 340.

However, other than a footnote in Timken that is arguably dictum,the Federal Circuit has never addressed directly the question ofwhether filing of an appeal suspends any other legal consequence ofa CIT decision sustaining a remand determination, such as those atissue here. That footnote, which discusses cash deposits, appears tobe the only clear indication of the Federal Circuit’s position on thematter:

The timing of publication of notice is of great importance to theparties. Under section 1516a(c), unless liquidation is enjoined bythe CIT, liquidation continues under the original Commercedetermination until publication of a CIT or Federal Circuit de-cision not in harmony with Commerce’s determination. Thus, in


the present case, liquidation of CMEC’s entries is currentlytaking place without assessment of antidumping duties, butwould be suspended and made subject to collection of estimatedantidumping duties of 4.69% upon publication of notice of theMarch 22, 1989 CIT decision.

Id. (emphasis added). Even if dictum, the above-quoted passage ispersuasive evidence that the Federal Circuit, at least in the context ofTimken, assumed that (1) the collection of cash deposits would com-mence upon publication of the Timken Notice and that (2) publicationwas of “great importance” to the litigants precisely because of itseffect on cash deposits. At a minimum, this passage significantlyundermines the defendants’ contention that Timken “forbids” thecollection of cash deposits (or any other action beyond suspension ofliquidation) prior to a conclusive court decision.4

The ITC also points to Hosiden Corp. v. Advanced Display Manu-facturers of America, 85 F.3d 589 (Fed. Cir. 1996) as support for itsposition; the defendant-intervenors echo this assertion with force,asserting that the Hosiden Court “ruled explicitly on the issue of cashdeposits and found that a change in cash deposits is not required asa result of a decision of this Court that is not yet ‘conclusive.’” Def.-Int’s No. 09–00110 Resp. at 18.

The court is unable to agree that Hosiden stands for the propositionthe defendants advocate. This Court has never interpreted Hosiden tobe more than a reaffirmation of the proposition that, regardless of thecircumstances, this Court may not order liquidation of any of theaffected merchandise prior to a final and conclusive court decision. Itis worth noting that the CIT action on appeal in Hosiden was a writof mandamus that contained five separate decretal paragraphs, andthat the majority of these paragraphs contained more than one spe-cific order. Hence, the Court’s directive ordering Commerce to modifycash deposits and revoke the existing antidumping duty order, andthe Court’s directive ordering Commerce to revoke the suspension ofliquidation and return previously collected cash deposits, were onlytwo orders among many; however, only the latter order was discussedin the opinion. See Hosiden Corp. v. United States, 861 F. Supp. 115,120–21 (1994). While it is true that the Federal Circuit subsequently

4 It also appears that the Federal Circuit has indicated an assumption that antidumpingduty orders are modified pursuant to judgments of this Court regardless of whether anappeal has been filed. See Atlantic Sugar Ltd., v. United States, 744 F.2d 556, 564 (Fed. Cir.1984) (reversing this Court’s finding of insubstantial evidence, reinstating the original ITCdetermination, and ordering reinstatement of the antidumping duty order— indicating anassumption that the antidumping order had been revoked pursuant to the CIT decision).


vacated the writ of mandamus as contrary to law, the sole focus ofthat rather brief opinion was that section 1516a(e) and relevantprecedent precluded this Court from ordering liquidation prior to theissuance of the final decision on appeal. Specifically, the Court stated:

Statute and precedent are clear that the decision of the Court ofInternational Trade is not a “final court decision” when appealhas been taken to the Federal Circuit. The Court of Interna-tional Trade does not have discretion to require liquidation be-fore the final decision on appeal. 19 U.S.C. § 1516a(e) requiresthat liquidation, once enjoined, remains suspended until there isa “conclusive court decision which decides the matter, so thatsubsequent entries can be liquidated in accordance with thatconclusive decision.”

Hosiden, 85 F.3d 591 (Fed. Cir. 1996) (quoting Timken, 893 F. 2d at342). Although Hosiden contains the very broad language quoted bythe defendants (in the first sentence of the passage quoted above), thesentence that follows limits the holding to matters regarding liqui-dation and section 1516a(e). At best, Hosiden might be construed toprohibit the return of previously collected cash deposits (which mayonly be returned upon liquidation, see 19 U.S.C. § 1505), butdefendant-intervenors assertion that the Hosiden Court “ruled ex-plicitly on the issue of cash deposits,” is simply not credible.

4. Chevron Deference and 19 U.S.C. § 1516a

Before addressing further the ITC’s interpretation of section 1516a,the court must clarify that the ITC’s interpretation of that statute isnot entitled to Chevron deference. The familiar two-part analysis setforth in Chevron guides the court’s analysis when determining thelawfulness of an agency’s construction of a statute it administers, andin the first part of the analysis, the court must look to “whetherCongress has directly spoken to the precise question at issue.” Chev-ron, 467 U.S. at 842. If the court finds that Congress has clearlyspoken to the question at issue, the analysis is at an end, “for thecourt, as well as the agency, must give effect to the unambiguouslyexpressed intent of Congress.” Id. at 843. However, if the court findsthe statute to be silent or ambiguous, it reaches the second step of theanalysis, where it must determine whether the agency’s interpreta-tion is reasonable; the court must defer to that interpretation if it“reflects a plausible construction of the plain language of the statuteand does not otherwise conflict with Congress’ express intent.” Rust v.Sullivan, 500 U.S. 173, 184 (1991); Koyo Seiko Co. v. United States, 36F.3d 1565, 1570 (Fed. Cir. 1994).


Implicit in the first step of the Chevron analysis, however, is a thirdquestion, which must be answered in the affirmative before proceed-ing: Has Congress truly delegated to the agency the task of admin-istering the statute in question? That is, if there is an interpretive“gap” in the statute, is it reasonable to conclude that the “gap” is onethat Congress expected the agency to fill? The Supreme Courttouched upon the issue in Smiley v. Citibank (S.D.), N.A, explaining:

We accord deference to agencies under Chevron, not because ofa presumption that they drafted the provisions in question, orwere present at the hearings, or spoke to the principal sponsors;but rather because of a presumption that Congress, when it leftambiguity in a statute meant for implementation by an agency,understood that the ambiguity would be resolved, first and fore-most, by the agency, and desired the agency (rather than thecourts) to possess whatever degree of discretion the ambiguityallows.

Smiley, 517 U.S. 735, 740–741 (1996) (italics added).In brief, the two-step Chevron analysis is warranted only when (a)

Congress appears to have delegated authority to the agency; and (b)the agency interpretation in question “was promulgated in the exer-cise of that authority.” United States v. Mead Corp., 533 U.S. 218,226-227 (2001). See also Gonzales v. Oregon, 546 U.S. 243, 255–256(2006); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120(2000). The particular statue the ITC would interpret, however, isunlike the provision accorded interpretive deference in Chevron (thedefinition of “point source”) or United States v. Haggar Apparel Co.,526 U.S. 380 (1999) (interpreting a particular exemption in HTSUS),and a multitude of other cases. Here, the ITC and the defendant-intervenors contend that the court should accord deference to theITC’s interpretation of section 1516a of Title 19 of the United StatesCode, which the ITC itself describes as governing “[j]udicial review incountervailing duty and antidumping duty proceedings.” In otherwords, the ITC contends it is entitled to deference on its interpreta-tion of the very statutes governing aspects of the judicial proceedingsto which it is a party. Such a proposition is patently unreasonable andmust be rejected. See Marbury v. Madison, 1 U.S. (1 Cranch) 137(1803). Accordingly, the court affords no deference to the ITC’s inter-pretation of section 1516a.5

5 The court expresses no opinion on whether deference should be accorded to the Commis-sion’s interpretation of 19 U.S.C. § 1673.


5. 19 U.S.C. § 1516a(c)(3): Remand for Final Disposition

In proceedings before this Court, references to section 1516a(c)(3)have been used almost universally as support for the Court’s ability toissue remands. See, e.g., United States Steel Group v. United States,24 CIT 1326, 1332, 123 F. Supp. 2d 1365, 1372 (2000); Nippon SteelCorp. v. United States, 19 CIT 827 (1995). However, the ITC proposesthat section 1516a(c)(3) means something entirely different. TheCommission asserts that, based upon the analysis set forth inTimken, the term “final” used in section 1516a(c)(3) clearly means“final and conclusive.” Hence, says the Commission, section1516a(c)(3) is, in reality a provision that “instructs that the courtsmay only remand the matter to the Commission for disposition con-sistent with the final disposition of the court” after there has been a“final disposition of {the} action . . .{that} is not in harmony with the{original} published determination . . . of the Commission.” ITC Mem.at 13 (ITC’s alterations). In other words, the Commission states thatit has no duty to take action “consistent with the final disposition ofthe court” unless the matter has been remanded pursuant to a finaland conclusive decision, which has not yet occurred in this case.

As noted above, the ITC’s interpretation of section 1516a(c)(3) isderived, in part, from the Timken Court’s conclusion that the term“final” in section 1516a(e) referred to a final and conclusive decision.Specifically, where that Court notes:

Most persuasive is the fact that the term “final court decision”must be read together with the words that follow, specifically, “inthe action.” An “action” does not end when one court renders adecision, but continues through the appeal process. Thus, anappealed CIT decision is not the final court decision in theaction. In this context, the word “final” is used as it is used in 28U.S.C. § 2645(c), i.e., to mean “conclusive.” Thus, § 1516a(e) doesnot require liquidation in accordance with an appealed CITdecision, since that section requires that liquidation take placein accordance with the final court decision in the action.

Timken, 839 F.2d at 339–40. According to the ITC, the above analysiscombines with the “canons of statutory construction” to demonstratethat the term “final” as it is used in section 1516a(c)(3) must likewiserefer only to a final and conclusive court decision:

Congress used the word “final” to describe court action only inthese two subsections of section 1516a. The canons of statutoryconstruction instruct that use of an identical term within vari-ous provisions of a statute should normally be given the samemeaning. By using the term “final” to refer to court action in


subsection 19 U.S.C. § 1516a(c)(3) and 19 U.S.C. § 1516a(e),while omitting that modifier in other sections, Congress madeclear that these sections were intended to cover only “final”appellate action. . . . As a result, the references in 19 U.S.C. §1516a(c)(3) to the “final disposition of an action” and “the finaldisposition of the court” refer to the court decision that finallyand conclusively disposes of the action.

ITC Mem. at 21–22, n.21 (citations omitted). Thus, the Commissionargues essentially that the Timken Court’s conclusion as to the mean-ing of the term “final” in section 1516a(e) must also be applied to thatterm as it is used in section 1516a(c)(3).6

The court finds this analysis flawed in several respects. First, theanalysis ignores that it is also a basic canon of statutory constructionthat the words of a statute “must be read in their context and with aview to their place in the overall statutory scheme.” Davis v. Michi-gan Dept. of Treasury, 489 U.S. 803, 809 (1989). The Timken court’sconclusion that the term “final” as it is used in section 1516(e) means“final and conclusive” was not simply the result of applying a singlecanon of statutory construction. On the contrary, that conclusionresulted from an observation as to the plain meaning of the text, ananalysis as to whether that meaning was consistent with the statu-tory scheme, and confirmation that the proposed meaning of the termwas supported by legislative history and could be harmonized withexisting caselaw. See Timken, 839 F.2d at 339–40.

Second, the ITC focuses on the term “final” at the expense ofignoring the rest of the statute—particularly the term “remand.”Unlike the term “final,” the definition of a remand is rarely subject toambiguity or debate. A remand is a type of court order; it means “[t]osend (a case or claim) back to the court or tribunal from which it camefor some further action.” Black’s Law Dictionary 1407 (9th ed. 2009).See Ford Motor Co. v. N.L.R.B., 305 U.S. 364, 374 (1939) (noting thata remand “means simply that the case is returned to the administra-tive body in order that it may take further action in accordance withthe applicable law.”). A remand order is generally considered to be “an6 Section 1516a(c)(3) provides

(3) Remand for final disposition.

If the final disposition of an action brought under this section is not in harmony withthe published determination of the Secretary, the administering authority, or the Com-mission, the matter shall be remanded to the Secretary, the administering authority, orthe Commission, as appropriate, for disposition consistent with the final disposition ofthe court.


interlocutory order that does not divest a court of jurisdiction.” Averyv. Secretary of Health and Human Services, 762 F.2d 158 (1st Cir.1985).

However, when combined with the ITC’s definition of “finality,” theordering of a remand makes no sense. Under the ITC’s interpretation,the conclusive finality of a judgment — and the alleged duty to issuea remand—ripens at a point in time when “remand” (as the term isused in American jurisprudence) is no longer possible. That is, once acase has achieved the “conclusive” finality that the ITC asserts is aprerequisite for a 1516a(c)(3) remand, no further action may be takenon that case. Although a court may enforce its judgments, that is notthe same as a remand. A court remands a matter for action on thecase, which cannot occur subsequent to a final and conclusive deci-sion.7 The ITC’s interpretation of section 1516a(c)(3) would requirethe court, inter alia, to expand the definition of a thoroughly-understood term to mean something entirely different. This the courtis unwilling to do.

It is perhaps worth noting that the Commission’s proposed inter-pretation attempts to fashion section 1516a(c)(3) in the likeness sec-tion 1514(a). Section 1514(a) provides that “[w]hen a judgment ororder of the United States Court of International Trade has becomefinal, the papers transmitted shall be returned, together with a copyof the judgment or order to the Customs Service, which shall takeaction accordingly.” 19 U.S.C. § 1514(a). In this provision, Congressexpressly provided that the U.S. Customs and Border Protection(“CBP”)—directly, and without remand—is to effectuate the Court’sdecision upon receipt of a judgment or order that “has become final.”Because a judgment of this Court is final and appealable on the dateit is issued, a judgment can only “become final” in the sense that it isno longer subject to appeal or collateral attack, i.e., final and conclu-sive. See Heraeus Amersil v. United States, 10 CIT 438, 638 F. Supp.342 (1986). Accordingly, the existence of such a clear statutory direc-tive demonstrates that when Congress intended to delay the enforce-ment of this Court’s decisions, it did so explicitly.8

In any event, the court is not persuaded that the Timken Court’sinterpretation of “the final court decision in the action” as it is used insection 1516a(e) may be so readily applied to section 1516a(c)(3),because the language of that latter provision is slightly different. TheTimken Court focused on the phrase “in the action” as persuasive

7 And does not occur. The court is unable to find any record of any court issuing a 1516a(c)(3)“remand” of the nature proposed by the ITC.8 Because section 1514(a) applies only to CBP entry decisions, the only practical result ofthe section 1514(a) “stay” is to suspend liquidation pending appeal.


evidence that “the final court decision in the action” referred to a finaland conclusive court decision, as opposed to the finality that occursfrom this Court’s entry of judgment. By contrast, section 1516a(c)(3)refers to “the final disposition of an action brought under this section,”which, arguably, means something entirely different. The phrase “anaction brought under this section” (or “this subsection” or “para-graph”) is used several times in section 1516a simply to describewhich causes of action are governed by the particular provision.Moreover, the Commission overlooks that a “final disposition” is notnecessarily the same as a “final court decision.” Under CIT Rule 16,a matter is submitted “for final disposition” when the deadline for thesubmission of pleadings or evidence has passed and the matter issubmitted to the Court so that it may render a decision. See CIT Rule16(e); see also CIT Rules 16(a)(4), 16(e), 16(b)(3)(B)(v), 30(f)(1), 84(h).9

Hence, under the Court’s Rules (which were adopted in the CustomsCourts Act of 1980, shortly after the Trade Agreements Act of 1979),a “final disposition” would include not only judgments that are “finaland appealable,” but interlocutory decisions as well, such as a re-mand.

Moreover, as noted above, the vast majority of judicial references tosection 1516a(c)(3) do not support the ITC’s interpretation. In one ofthe few (perhaps only) judicial discussions of that specific provision,the Federal Circuit interpreted section 1516a(c)(3) as curtailing thisCourt’s ability to reverse or modify the agency decision, stating:

Section 1516a limits the Court of International Trade to affir-mances and remand orders; an outright reversal without a re-mand does not appear to be contemplated by the statute: “If the[Court of International Trade’s] final disposition of an actionbrought under this section is not in harmony with the published

9 Another potential problem with the ITC’s interpretation surrounds its characterization ofthe section (c)(3) reference to “the published determination” as necessarily or only referringto the agency’s original determination. In fact, the standard canons of statutory construc-tion would seem to indicate otherwise, because the “determination” at issue is referred to as“the published determination” only in sections (c)(3) and (e), whereas sections (c)(1) and(c)(2) refer to “a determination . . . contested under subsection (a) of this section” and “adetermination described in paragraph (2) of subsection (a) of this section.” Unfortunately,the term “published determination” in itself is problematic, because not all of the “deter-minations” reviewable under 1516a are published. As shown in sections 1516a(a)(1) and(a)(2)(A), final determinations such as the one at issue here require only “publication ofnotice” of the decision. At the risk, perhaps, of certain impropriety in this assumption, thisdesignation is probably an oversight: historically speaking, most of what is now section1516a was previously found in section 1516. See 19 U.S.C. § 1516(g) (1977). Section 1516required (and still does require) publication of the decision as a part of the protest procedureat the administrative level. Moreover, previous versions of the bill that eventually becamethe Tariff Agreements Act of 1979 required publication of the actual decision. It is thereforemore reasonable to conclude that “published decision” in section (c)(3) refers to the originalagency decision.


determination [of] the Commission, the matter shall be re-manded to . . . the Commission, as appropriate, for dispositionconsistent with the final disposition of the [Court of Interna-tional Trade].”

Altx v. United States, 370 F.3d at 1108, 1111 n.2 (Fed. Cir. 2004)(quoting 1516a(c)(3)) (alterations in original).10 By contrast, the ITC’sinterpretation implies that the Court is not so restricted. Case lawsuggests that, prior to the enactment of the Trade Agreements Act of1979, the powers of the Court were viewed in a manner that mightcharitably be described as the exact opposite of how they are viewedtoday. During that time, this Court’s predecessor voided the agencydecision and ordered liquidation in accordance with its own opinion,eschewing remands in all but the most unusual circumstances. See,e.g., AS Industries, Inc. v. United States, 82 Cust. Ct. 101, 149-52, 467F. Supp. 1200, 123–41 (1979).

Finally, the court cannot agree with the ITC’s assertion that itsinterpretation is supported by legislative history. The “support” towhich the Commission refers is a single comment found in the SenateFinance Committee Report on H.R. 4537 (signed into law as the TradeAgreements Act of 1979). That comment describes the new section1516a(c)(3) as providing “that if the final disposition of an actioninstituted under the section is not in harmony with the challengeddecision, the matter shall be remanded to the decision-maker fordisposition consistent with the court’s decision.” S. Rep.No. 96–249,96th Cong., 1st Sess. at 249. The court finds this statement pro-foundly unilluminating as to the issue here; this comment simplyrepeats the language of the statute with no indication of a deliberateeffort to interpret it. However, three pages later the same SenateReport contains the following statement:

It is . . . unclear under the current law whether the CustomsCourt can or should remand a matter to an administrativeagency when it holds that the agency’s decision is erroneous.Section [1516a] will make it clear that the court has the powerto remand the matter to the agency.

Id. at 252. This statement is clearly inconsistent with the interpre-tation advocated by the ITC, and, unlike the previous comment, it

10 The Court’s authority to remand matters to the appropriate agency appears to stretchbeyond the “if-then” mandate of section 1516a(c)(3), see 28 U.S.C. § 2643(c)(1) and BorlemS.a.-empreedimentos Industriais v. United States, 913 F.2d 933 (Fed. Cir. 1990) (holdingthat Court had power to remand ITC decision for reconsideration where Commerce remanddecision may have an effect on the ITC’s material injury finding).


reflects a deliberate effort to interpret the provision. In toto, theSenate Report comments are, at best, in equipoise; though moreaccurately, the Senate Report appears to contravene the ITC’s posi-tion.11

6. Consequences of An Affirmative Determination

Commerce takes the position that because it has not received “for-mal” notice of an affirmative ITC decision issued under section1673d(b), it therefore cannot lawfully issue antidumping duty ordersor collect cash deposits. See, e.g., DOC Mem. at 9–10. More specifi-cally, Commerce argues:

Although the January 22 letter briefly recounts the history ofDSMC Slip Op. 09–5, and includes a copy of the administrativeremand determination, the letter does not provide notice “of anaffirmative determination under section 1673d(b).” The solepurpose of the January 22, 2009 letter was “to inform [Com-merce] of the final decision of the U.S. Court of InternationalTrade . . . regarding the Commission’s [original negative injury]determinations.” The letter explains that the ITC made an af-firmative determination upon remand, and that this Court’sopinion in DSMC Slip Op. 09–5 affirming that remand consti-tutes a decision not in harmony. . . . Nowhere in the letter doesthe ITC state that the remand determination constitutes a sec-

11 The court is likewise unable to find support for the ITC’s interpretation anywhere in thelegislative history associated with the Act at issue, Public Law 96–39, 93 Stat 144 (1979) orthe previous versions thereof. On the other hand, there seems to be ample support for theview that the provision referred to remands issued by this Court. Every previous version ofthe eventually-codified bill contained a provision similar to section 1516a(c)(3) that clearlyreferred to remands issued by this Court. See Title VI of S. 2857, § 516(g)(2) CongressionalRecord – Senate (Apr. 7, 1978) at 9196 (providing that “upon the filing of an action forjudicial review under subsection (1) of this subsection, the Customs Court shall review therecord of the decision of the Secretary or the United States International Trade Commission. . . [t]he Court may affirm the decision or order that the entire matter be returned forfurther consideration, but the Court may not modify the decision”); Title I of S. 223(providing that “if the court determines in favor of the petitioning party as to actionscommenced under paragraph (3) or (4) of this subsection, it shall remand the matter to theSecretary or the Commission, whichever is appropriate, for action, not inconsistent with thecourt’s determination”); Congressional Record – Senate (Jan. 25, 1979) at 1143 (“[r]eview isnot expanded to the extent that reversing an[] administrative determination would be soeasy as to maintain a considerable degree of uncertainty in the marketplace following thecompletion of agency action[; r]ather, the greater review ability should induce the admin-istrative agencies to be more careful in applying the law consistently to the facts, andinduce greater disclosure of the issues decided and the reasons for those decisions”). Hence,although some legislative history is ambiguous, most would appear to be in contraventionof the ITC’s position.


tion 1673d(b) “final determination” of affirmative injury, as re-quired by section 1673e(a) before Commerce may publish anorder.

DOC Mem. at 10 (citations omitted) (DOC’s alterations).Under Commerce’s logic, the ITC’s Remand Determination was

reached only pursuant to 19 U.S.C. § 1516a. A remand determinationis not so insulated. The third branch of government does not “takeover” an antidumping matter from the executive branch; the role ofthe Court is statutorily confined to deciding whether or not there issubstantial evidence on the record to support the executive determi-nation reached. Further, section 1516a(c)(3) provides that “[i]f thefinal disposition of an action brought under this section is not inharmony with the published determination of the Secretary, the ad-ministering authority, or the Commission, the matter shall be re-manded to the Secretary, the administering authority, or the Com-mission, as appropriate, for disposition consistent with the finaldisposition of the court.” The matter in this instance was, of course,the ITC’s final negative determination that it made pursuant to 19U.S.C. § 1673d, see 19 U.S.C. § 1516a(2)(B)(ii), which this court found“unlawful” in accordance with 1516a(b)(1)(B)(i).

The ITC does not comment directly on the legal implications of itsnotice to the Department. Instead, it argues that section 1673 publi-cation does not apply to determinations that result from judicialreview. The ITC contends that separate statutory provisions governthe publication of agency determinations “depending on whether thedeterminations were issued during an antidumping investigation or acourt action” (ITC Mem. at 9), a contention that is apparently basedonly on an observation of the overall statutory scheme. More specifi-cally, the ITC reasons that because the provisions contained in sec-tion 1673d govern procedure undertaken “within the specific timeframes during an investigation specified in sections 1673d(b)(2) & (3),it is clear that the publication requirement in section 1673d(d) is . . .directly applicable only to final determinations issued by the Com-mission during the course of an injury investigation.” Id. at 10. Con-versely, says the ITC, section 1516a governs publication during judi-cial review and section 1516a(e) supports the Commission’s practiceof not publishing notice of a remand determination until a final andconclusive decision in the matter. Id. at 17.

The main problem with the ITC’s argument, of course, is thatnowhere in the text of section 1673d(d) or the related subsections isthere any indication that those provisions do not apply to determina-tions issued pursuant to a court-ordered remand. Further, even if thecourt were to accept such a premise, ITC’s interpretation is not


entirely consistent with its own argument. That is, because a finaland conclusive decision is, by definition, still a product of judicialreview, it would still not constitute the section 1673d(b) determina-tion that Commerce argues is strictly required, and, seemingly, wouldnot trigger the section 1673d(d) notice-publication requirement.

7. Legal Replacement of the Original Determination

In Decca Hospitality Furnishings, LLC v. United States, the courtobserved that “Commerce’s own remand determination, as a matterof law, replaces Commerce’s original, final determination.” 30 CIT357, 363, 427 F. Supp. 2d 1249, 1255 n.11 (2006). The defendantsroundly attack that proposition as “unsupported,” but, ironically, pro-vide no support to the contrary. Whatever the reasons for this lack ofsupport, the court is compelled to agree with Decca.

That a remand determination replaces the original determinationis a notion so basic to administrative law that few courts have foundthe need to articulate it expressly. If the remand determination didnot legally replace the original determination (which the court has, bydefinition deemed unlawful or inadequate), orders of remand wouldbe pointless; the court would have no reason (and likely no jurisdic-tion) to review remand determinations. Furthermore, because a ju-dicial holding that an agency decision is unlawful essentially consti-tutes a vacatur of that decision, a new determination is logicallynecessary to fill the void. See 5 U.S.C. § 706(2) (providing that thereviewing court shall “hold unlawful and set aside” agency actionsunsupported by substantial evidence); Timken U.S. Corp. v. UnitedStates, 421 F.3d 1350, 1355 (Fed. Cir. 2005) (holding that an agency’s“failure to provide the necessary clarity for judicial review requiresthat the action be vacated” ) (quoting Camp v. Pitts, 411 U.S. 138,142–43 (1973); Sugar Cane Growers Co-op of Fla. v. Veneman, 289F.3d 89 (D.C. Cir. 2002) (stating that “[n]ormally, when an agency soclearly violates the APA we would vacate its action . . . and simplyremand for the agency to start again.”). Even without vacatur, theentire purpose of a remand is to allow the lower tribunal to rectify orreplace a decision that a court has found to be deficient.12

Although the practical effect of the Federal Circuit’s decision inMelamine Chemicals essentially operates to stay the legal effects ofthe vacatur until the Court’s issuance of judgment (which may onlyoccur when the court sustains a (remand) determination), that fact is

12 See Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands WithoutVacatur in Administrative Law, 36 Ariz. St. L.J. 599, 612–17 (2004) (noting that orderingremand without vacatur allows the challenged agency action to stand during remandproceedings).


irrelevant here because the court has rendered the requisite finaldecision and issued the judgment necessary to give that decision legaleffect. Tembec, Inc. v. United States, 31 CIT __, 475 F. Supp. 2d 1393,n.2 (2007) (noting that “judgment is the legal pronouncement of [the]decision and the act that gives the decision legal effect.”). Accordingly,the contention that the original vacated or unlawful determinationcontinues to “govern” after issuance of judgment is simply a legalimpossibility. Cf. Co-Steel Raritan, Inc. v. International Trade Com-mission, 357 F. 3d 1294,1319 (Fed. Cir. 2004) (dissent) (observing that“[i]ndeed, once the Commission issued its remand determination, thenegative preliminary determination ceased to exist and the currentposture of the case was that the Commission had issued an affirma-tive preliminary determination, with continuing administrative pro-ceedings to come”).

The process of judicial review reveals no distinction between origi-nal determinations and remand determinations and lends no supportto the inference that remand determinations do not have the samelegal status as the original determination. The court’s review ofagency determinations issued pursuant to a court-ordered remand isgoverned by the same standard of review used in reviewing theoriginal determination. The statutory “presumption of correctness”afforded to agency decisions contains no distinction between deter-minations issued within the context of an original investigation andthose issued as a result of a remand from this court. See 28 U.S.C. §§2639(a)(1), 2640.

Likewise, the Federal Circuit’s review of CIT decisions does notturn on whether the agency determination being reviewed was theoriginal determination or a determination issued on remand. SeeAltx, 370 F.3d 1108, 1117 (Fed. Cir. 2004) (holding that appellatereview “encompasses the entirety of the proceedings before the Courtof International Trade, including intermediate remand orders thatwould not, independently be appealable” although court remand or-ders are generally reviewed under the more lax “abuse of discretion”standard). Moreover, reversals of this Court’s decisions frequentlynecessitate orders to “reinstate” the original determination or a pre-vious remand determination. See Nippon Steel Corp. v. United StatesIntern. Trade Comm’n, 494 F.3d 1371 (Fed. Cir. 2007); Viraj Group v.United States, 476 F.3d 1349, 1359 (Fed. Cir. 2007); Nippon SteelCorp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006); Tak Fat Trad-ing Co. v. United States, 396 F.3d 1378, 1386 (Fed. Cir. 2005).

While the court can agree that requiring immediate publication ofevery remand determination would present grave logistical compli-cations (not least because it is not unusual to find cases resulting in


two, three, or even four remand determinations), the court need notdetermine the precise legal posture of a remand determination as itexists on the date of issuance, because the Federal Circuit’s holding inTimken, as well as the text of section 1516a(c)(1), establish that exceptfor liquidation, which is governed by section 1516a(e), a remanddetermination becomes legally operative on the date that this Courtissues a final decision sustaining it. Hence, if an agency’s refusal topublish notice of such a determination alters that scheme (such as thepotential delay under section 1673e discussed below) the withholdingof publication would be contrary to law. However, in this case the ITCneed not publish notice of its affirmative determination because,consistent with Timken and the ITC’s own arguments, publication ofnotice of the court’s decision also serves to give notice of the affirma-tive remand determination that it sustained. Simply stated, in thecontext of judicial review, Commerce’s publication of the Timken No-tice under section 1516a(c)(1) effectively stands in the place of1673d(d) notice publication. Such a conclusion flows logically from theTimken holding and reflects the related doctrine that court decisionsadjudicating the lawfulness of lower-tribunal determinations essen-tially replace (or encompass) the determination(s) on review. SeeDisabled American Veterans v. Gober, 234 F.3d 682, 693 (Fed. Cir.2000) (holding that “[i]f a superior court, such as the Court of Appealsfor Veterans Claims, affirms the determination of the Board on aparticular issue, that Board decision is replaced by the Court ofAppeals for Veterans Claims decision on that issue.”); Zhejiang Na-tive Produce & Animal By-Products Imp. & Exp. Group Corp. v.United States, No. 2008–1106, 2009 U.S. App. LEXIS 16179 (Fed. Cir.July 23, 2009) (unpublished) (holding that “[a]lthough the trialcourt’s 2004 judgment was final, that final judgment was reversed onappeal and remanded to the trial court[; t]here is thus no longer anyfinal judgment in this case as to which a Rule 60(b) motion couldproperly be filed”). Accordingly, because the ITC’s affirmative deter-mination has been published, DSMC’s request for a writ of manda-mus as it applies to the ITC will be denied as moot.

8. Presumption of Correctness

Finally, the defendant-intervenors contend, inter alia and nonethe-less, that the question of the legal effectiveness of CIT decisions onappeal was resolved when the Timken Court “stated that an agency’sdetermination is ‘presumed correct’ and that, if the Court or FederalCircuit renders a decision which is contrary to that determination,the presumption of correctness disappears . . . until there is a con-clusive court decision which decides the matter.” Def.-Int’s No.


09–00110 Resp. at 10.13 The arguments in this regard are, in the veryleast, misguided. The presumption of correctness has no bearing onthis matter. Several cases issued subsequent to Timken establishedthat the presumption of correctness is “a procedural device” thatallocates the burdens of proof/production between the two litigatingparties, and “is analytically distinct from the deference afforded to[an agency] decision, which is instead governed by standards of re-view.” Universal Elecs. v. United States, 112 F.3d 488, 493 (Fed. Cir.1997); Anhydrides & Chemicals, Inc., v. United States, 130 F.3d 1481,1486 (Fed. Cir. 1997) (holding that “when there is no factual disputethe presumption of correctness under § 2639(a)(1) is irrelevant”);Goodman Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed. Cir. 1995)(finding that “[b]ecause there was no factual dispute between theparties, the presumption of correctness is not relevant”).

B. DSMC Lacks Adequate Means to Obtain the Desired Relief

The defendants argue that the current suspension of liquidation isan adequate alternative remedy to the relief DSMC is seeking be-cause suspension of liquidation preserves DSMC’s rights if Slip Op.09–5 is affirmed on appeal. DOC Mem. at 17–18; ITC Mem. at 26. Inthis regard, the ITC points out that Commerce suspended liquidationon imports of subject merchandise entered after January 23, 2009,and that, less certainly, “all appropriate antidumping duties will becollected fully and accurately, on these entries of subject merchan-dise” if the decision is affirmed on appeal. ITC Mem. at 26.

The court finds these arguments inadequate. First, Commerce andthe Commission fail to address whether section 1673e(b)(2) may ef-fectively deprive the plaintiff of relief. That section provides:

(b) Imposition of duty.

* * *

(2) Special rule. If the Commission, in its final determinationunder [19 U.S.C. § 1673d(b)], finds threat of material injury,other than threat of material injury described in paragraph (1),or material retardation of the establishment of an industry inthe United States, then subject merchandise which is entered,or withdrawn from warehouse, for consumption on or after thedate of publication of notice of an affirmative determination of

13 Counsel for the defendant-intervenors must be cautioned that a more scrupulous atten-tion to detail may be warranted when quoting language from Court decisions. Omission oflanguage within quotations that results in a substantive change may be seen as a deliberateattempt to mislead the court. See Precision Specialty Metals, Inc. v. United States, 315 F.3d1346 (2003).


the Commission under [19 U.S.C. § 1673d(b)] shall be subject tothe assessment of antidumping duties under section [19 U.S.C.§ 1673], and the administering authority shall release any bondor other security, and refund any cash deposit made, to securethe payment of antidumping duties with respect to entries of themerchandise entered, or withdrawn from warehouse, for con-sumption before that date.

19 U.S.C. § 1673e(b)(2) (emphasis added).The plain meaning of this provision implies that where the Com-

mission’s final determination is affirmative for threat of materialinjury only, any delay in publication of the affirmative decision liter-ally pushes forward the date that duties will be assessed: duties willbe assessed only on subject merchandise entered “on or after the dateof publication of notice of an affirmative determination of the Com-mission . . . .” 19 U.S.C. § 1673e(b)(2). And, in accordance with theplain meaning of 19 U.S.C. § 1516a(c)(1), once the decision becomesfinal and conclusive, the suspension of liquidation is removed, and allsubject merchandise entered after the Timken Notice (that is requiredas a consequence of the first “adverse” court decision) is liquidated inaccordance with the adverse court decision (or, more accurately, inaccordance with the remand determination that the court sustained).This plain timeline is illustrated below as line “A,” while the inter-pretation the ITC effectively contemplates in this matter is demar-cated as line “B”:

The Commission’s interpretation is inaccurate, because section1516a(c)(1) contemplates that adversity towards the administrativedetermination is established at the point in time when the first “final”adverse judicial decision is issued, which is not the same point in timeat which such decision becomes “final and conclusive.” The Commis-sion’s interpretation does not impact the ultimate relief to which a


plaintiff is entitled in the “ordinary” instance of a judicial decisionadverse to a final negative Commission determination on the issue ofmaterial injury (because subject merchandise entered after the ad-verse judicial decision— or, more accurately, after publication of no-tice of that decision, and provided liquidation is enjoined—is to beliquidated in accordance with such adverse judicial decision and notin accordance with the agency’s original negative determination), butplainly that is not so in the instance of an adverse judicial decision ona final negative Commission determination on threat of materialinjury. If the Commission delays “notice of publication” until all ap-peals have been exhausted, then the plain operation of section1673e(b)(2), in the context of section 1516a(c)(1), necessarily resultsin the elimination of a substantial portion of the relief to which theplaintiff is legally entitled. As observed above, that interpretation isnot in accordance with Timken, and it is difficult to comprehend thegovernment’s assertion that DSMC’s rights are “preserved” by thesuspension of liquidation: even if the Court of Appeals for the FederalCircuit were to affirm this court’s decision, section 1673e(b)(2) wouldprevent the retroactive assessment of duties upon entries of subjectmerchandise until “notice of publication” (in accordance with theCommission’s interpretation) and regardless of the “suspension ofliquidation” existent to such point in time.

Second, even without the operation of section 1673e(b)(2), the courtcannot agree that the future collection of cash deposits (or, as the casemay be, the collection of retroactive duties, with interest) provides thesame benefit to the plaintiff as would immediate issuance of an orderand the collection of cash deposits.14 The antidumping laws wereintended to protect United States industries against the domesticsale of foreign manufactured goods at prices below the fair marketvalue of those goods in the foreign country, Aimcor v. United States,141 F.3d 1098, 1101 (Fed. Cir. 1998), and Congress has long recog-nized that, unlike traditional customs cases, antidumping and coun-tervailing duty cases demand expeditious resolution. See S. Rep. No.96–249, 96th Cong., 1st Sess. 37 (1979). That is, in traditionalcustoms-valuation cases, the only consequences of the Court’s deci-sion was “whether an overpayment of duty would eventually be re-funded, [and] the enforceability of the lower court’s judgment wasnormally not a pressing matter.” American Grape Growers Alliancefor Free Trade v. United States, 9 CIT 568, 569, 622 F. Supp. 295, 297(1985). In this case however, the Commission’s affirmative determi-nation, albeit on remand, constitutes a finding that the domestic

14 Indeed, there would be no contest here today if the parties all agreed that futurepayments and current cash deposits were essentially the same.


industry is imminently threatened with material injury by reason ofdumped subject imports. 19 U.S.C. §1677(7)(F)(ii). Accordingly, thedefendants’ assertion that the postponement of the relief to which theplaintiff is entitled and that is designed to alleviate or prevent suchinjury (postponed, as it were, by the defendant-intervenors appeal) isadequately compensated, they claim, by the “fact” that interest willaccrue on the duties when they are finally collected is not credible.

C. The Writ is Appropriate Under the Circumstances

Commerce asserts that the court should deny relief in the nature ofa writ of mandamus “because suspension of liquidation preserves thestatus quo and parties’ substantive rights to the eventual outcome . .. .” DOC Mem. at 21. What Commerce means by the term “the statusquo” is, in reality, the condition of having the original determinationgovern imports of subject merchandise entered subsequent to theissuance of a court decision “not in harmony” with the original deter-mination. Not only is this contention inconsistent with section1516a(c)(1), as discussed above, it is inconsistent with “the basicproposition that all orders and judgments of courts must be compliedwith promptly.” Manness, 419 U.S. at 458. This court’s entry of judg-ment changed the legal relationship of the parties. If a litigant wishesto stay the effect of the court’s judgment, it may motion requesting astay under Rule 62 of the Court’s Rules, “but, absent a stay, [alitigant] must comply promptly with the order pending appeal . . .[p]ersons who make private determinations of the law and refuse toobey an order generally risk criminal contempt even if the order isultimately ruled incorrect.” Id. A judgment of this Court that isadverse to an agency determination has the immediate effect of al-tering the administrative status quo and changes the legal relation-ship between the litigants, and Congress considered that suspendingliquidation pending the final conclusive judicial decision was themeans by which parties would be protected. Accordingly, the courtfinds issuance of the writ appropriate under the circumstances of thiscase. The court has not only the power “but also a duty to enforce [its]prior mandate to prevent evasion,” Iowa Utilities Bd. v. F.C.C., 135F.3d 535, 541 (8th Cir. 1998), vacated on other grounds, 525 U.S. 1133(1999),15 and failure to enforce judgments would “reward bureau-cratic misconduct and encourage [administrative] anarchy.” Id. See,e.g., United States v. Hanover Ins. Co., 82 F.3d 1052 (Fed. Cir. 1996)(CIT has “inherent power to determine the effect of its prior judg-ments”).

15 See AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 1133 (1999).


V.Conclusion

With respect to Court No. 06–00247, DSMC’s requested writ ofmandamus to compel the ITC to publish notice of the Remand Deter-mination is hereby denied as moot in light of de facto publication ofthat determination, by implication, in Commerce’s Timken Notice.

With respect to Court No. 09–00110, the court concludes thatDSMC’s requested writ of mandamus shall be granted. Therefore, inaccordance with this opinion and in accordance with the Notice ofJanuary 22, 2009 from the ITC to Commerce, the Department ofCommerce and Secretary Gary Locke, together with his successors inoffice, delegates, officers, agents, servants and employees, will beordered to issue and publish antidumping duty orders and require thecollection of cash deposits on subject merchandise.

SO ORDERED.Dated: September 30, 2009

New York, New York/s/ R. Kenton Musgrave

R. KENTON MUSGRAVE, SENIOR JUDGE

◆

Slip Op. 09–108

UNITED STATES, Plaintiff, v. RONALD RODRIGUE and LEROY RODRIGUE,Defendants.

Court No. 08–00177

[Denying Plaintiff ’s motions seeking enlargement of 120-day period for service ofprocess as well as leave to serve by publication, and dismissing action]

Dated: October 1, 2009

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and FranklinE. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S.Department of Justice (Joseph A. Pixley); Philip Carpio, Office of the Associate ChiefCounsel, Bureau of Customs and Border Protection, U.S. Department of HomelandSecurity, Of Counsel; for Plaintiff.


OPINION

RIDGWAY, Judge:

I.Introduction

In this action, the Government seeks to collect civil penalties, plusinterest and costs, imposed on the Defendants for allegedly transact-ing customs business without a valid broker’s license.

Pending before the Court is Plaintiff ’s Motion for an Extension ofTime, which the Government filed nunc pro tunc. See Plaintiff ’sMotion for Leave to File Nunc Pro Tunc Plaintiff ’s Motion for anExtension of Time; Plaintiff ’s Motion for an Extension of Time (“Pl.’sMotion for Extension of Time”).1 In its Motion for an Extension ofTime, the Government seeks a 90-day enlargement of the 120-dayperiod for service of process established in USCIT Rule 4(l), to extendfrom September 18, 2008 to December 17, 2008 the Government’sdeadline for effecting service on the two Defendants.

Also pending is Plaintiff ’s Motion for Leave to Serve by Publicationand Motion for an Extension of Time, in which the Governmentrequests a second 90-day extension of the deadline for service ofprocess (i.e., an extension through March 17, 2009), and, moreover,seeks leave to make constructive service via publication in a Floridanewspaper. See Plaintiff ’s Motion for Leave to Serve by Publicationand Motion for an Extension of Time (“Pl.’s Motion for Service byPublication”).

Subject matter jurisdiction lies under 28 U.S.C. § 1582 (2000). Forthe reasons detailed below, the Government’s motions must be de-nied, and this action dismissed.

II.Background

According to the Complaint, father and son Defendants Ronald andLeroy Rodrigue operated a freight forwarding company in Miami,Florida, and transacted customs business without a valid broker’s

1 According to Plaintiff ’s Motion for Leave to File Nunc Pro Tunc, on the day before the120-day period for service of process expired, the Government sought a 90-day extension oftime. See Plaintiff ’s Motion for Leave to File Nunc Pro Tunc Plaintiff ’s Motion for anExtension of Time. However, the Government’s motion never reached the court; and some54 days elapsed before the Government resubmitted its motion nunc pro tunc. Id. TheMotion for Leave to File Nunc Pro Tunc Plaintiff ’s Motion for an Extension of Time wasgranted. See Order (June 26, 2009). Plaintiff ’s Motion for an Extension of Time thus is nowproperly before the Court.


license. See Complaint ¶¶ 3–4. Multiple pre-penalty and penaltynotices were issued to the two Defendants, advising them that theU.S. Bureau of Customs and Border Protection was assessing civilpenalties of $10,000 each “for transacting customs business, otherthan solely on behalf of themselves, without a valid brokers license.”See Complaint ¶ 12. The Complaint further alleges that, althoughCustoms has repeatedly billed both Defendants, the penalties remainunpaid. See Complaint ¶¶ 14, 16–17.

Seeking to collect the civil penalties, plus interest and costs, theGovernment filed this action on May 21, 2008 — the very day onwhich the five-year statute of limitations would have expired. SeeComplaint; Audio Recording of Hearing at 00:40:25–00:40:53 (notingthat statute of limitations would have expired May 21, 2008); 19U.S.C. § 1641(d)(4) (2000) (statute of limitations).2 The Governmentwas on notice that, pursuant to USCIT Rule 4(l), it had 120 days fromthe filing of the Complaint — that is, until September 18, 2008 — toeffect service on Ronald and Leroy Rodrigue. See USCIT R. 4(l).3 TheGovernment was also on notice that the stakes were high, and that ithad zero margin for error or delay. See Audio Recording of Hearing at03:27:25–03:27:38. Because the Government had run down the clockon the statute of limitations, the Government would be time-barredfrom refiling if failure to effect service within the 120-day periodresulted in the dismissal of this action.

The same day that it commenced this action, May 21, 2008, theGovernment mailed copies of the summons, Complaint, and waiver ofservice form to the two Defendants. The documents addressed toLeroy Rodrigue were sent via first class mail to 8618 SW 156th Place,Miami, Florida 33193, while Ronald Rodrigue’s copies were mailed to458 Buffalo Way, North Fort Myers, Florida. See Complaint, at Cer-tificate of Service.4 According to the certificate of service, the zip codeused for the mailing to Ronald Rodrigue was 33197. The correct zipcode, however, is 33917. See Audio Recording of Hearing at00:44:49–00:45:21, 00:49:34–00:50:47, 01:02:22–01:02:38 (noting that

2 Neither Defendant has appeared in this action.3 In the course of the hearing on the pending motions, the Government stated that the120-day period for service of process ended on September 28, 2008. See Audio Recording ofHearing at 00:41:12–00:44:06. However, that statement was inaccurate. As the Governmentcorrectly noted in its Motion for an Extension of Time, the deadline was actually September18, 2008. See Pl.’s Motion for Extension of Time at 1 (stating that “[t]he deadline for service. . . is September 18, 2008”).4 In its Motion for Service by Publication, the Government states that, on May 21, 2008, itmailed the summons, Complaint, and waiver of service form to Ronald Rodrigue at anaddress on Bamboo Palm Way. See Pl.’s Motion for Service by Publication at 4. Thatstatement is incorrect.


33917 is correct zip code); Complaint, at Certificate of Service (indi-cating that mailing was sent to zip code 33197).5

Months before the Complaint was filed, the Florida Department ofHighway Safety & Motor Vehicles had advised Customs that its mostrecent address-of-record for Leroy Rodrigue was the address on 156thPlace. See Carpio Declaration (Pl.’s Motion for Service by Publication,App. A) ¶ 7.6 At the same time, the same Florida agency also advisedthat its most recent address-of-record for Ronald Rodrigue was 712Bamboo Palm Way, Oviedo, Florida 32765, and that the Buffalo Wayaddress was Ronald Rodrigue’s prior address. See Carpio Declaration¶¶ 8–9.7 Customs provided all that information to the Department of

5 Although counsel for the Government acknowledged in the course of the hearing in thismatter that the proper zip code is 33917, the sole record evidence – the Certificate of Servicefor the Complaint – indicates that the mailing to Ronald Rodrigue was erroneously ad-dressed to zip code 33197. See Audio Recording of Hearing at 00:44:49–00:45:21,00:49:34–00:50:47, 01:02:22–01:02:38 (noting that 33917 is correct zip code); Complaint, atCertificate of Service (indicating that mailing was addressed to zip code 33197).6 The Carpio Declaration states that the Florida Department of Highway Safety & MotorVehicles advised Customs that the address on 156th Place was the Florida agency’s mostrecent address-of-record for Leroy Rodrigue. But the Declaration does not state when theFlorida agency provided Customs with that information. See Carpio Declaration ¶¶ 6–7.(Indeed, the Carpio Declaration suffers from a distressing lack of specificity, particularly asto dates. See generally Carpio Declaration ¶¶ 4–9.) At the hearing on the pending motions,however, the Government stated that the report from the Florida Department of HighwaySafety & Motor Vehicles is dated January 22, 2008. See Audio Recording of Hearing at00:19:55–00:20:10, 02:47:20–02:48:05. The information from the Florida Department ofHighway Safety & Motor Vehicles was forwarded to the Department of Justice as part ofCustoms’ “litigation report” dated February 13, 2008. See Carpio Declaration ¶ 8.

It also appears that Leroy Rodrigue used the address on 156th Place as his return addresson correspondence with Customs as late as mid-August 2007, and that certified mailaddressed to him was delivered to that address on some unspecified date(s). See AudioRecording of Hearing at 00:18:35–00:19:45, 02:45:22–02:46:29, 02:55:20–02:55:45 (statingthat, on August 27, 2007, Customs received letter from Leroy Rodrigue dated August 14,2007, bearing return address of 156th Place); see also Carpio Declaration ¶ 4 (stating thatLeroy Rodrigue used 156th Place address on correspondence with Customs, and alsoreceived certified mail at that address; however, Declaration does not indicate timeframe);Complaint ¶ 14 (stating that Customs billed Leroy Rodrigue in June 2007, July 2007, andAugust 2007, but silent as to mailing address and mode of transmission used by Customs,as well as any response from Leroy Rodrigue).

The ages of the addresses are critical. Addresses obviously become less reliable with thepassage of time.7 In the course of the hearing on the pending motions, the Government stated that theFlorida Department of Highway Safety & Motor Vehicles reported the Buffalo Way addressas the most recent address-of-record for Ronald Rodrigue. See Audio Recording of Hearingat 02:49:40–02:49:41. However, the Government did not have a copy of the Florida Depart-ment of Highway Safety & Motor Vehicles report on Ronald Rodrigue at the hearing; andthe Government’s statement was apparently in error. See Audio Recording of Hearing at02:50:13–02:51:24. The sole record evidence on point – the Carpio Declaration – states thatthe Florida Department of Highway Safety & Motor Vehicles advised Customs that the


Justice as part of its “litigation report” dated February 13, 2008; andCustoms apparently had the information in its possession for someweeks before that. See Carpio Declaration ¶¶ 6–9; Audio Recording ofHearing at 00:19:55–00:20:10, 02:47:20–02:48:05 (stating that reportfrom Florida Department of Highway Safety & Motor Vehicles wasdated January 22, 2008).8 Notwithstanding the more up-to-date ad-dress on Bamboo Palm Way that was provided by the Florida authori-ties, the Government mistakenly directed its May 21, 2008 mailing toRonald Rodrigue at his old address on Buffalo Way.

On June 6, 2008, the Government’s May 21, 2008 mailing to RonaldRodrigue was returned to the Government. See Audio Recording ofHearing at 00:51:23–00:51:47.9 The envelope, which was labeled “Re-turn to Sender,” indicated that it had first been forwarded to the

address on Bamboo Palm Way was the Florida agency’s most recent address-of-record forRonald Rodrigue, although the Declaration does not state when the Florida agency providedthat information to Customs. See Carpio Declaration ¶¶ 6, 8. It seems likely that the FloridaDepartment of Highway Safety & Motor Vehicles information on Ronald Rodrigue wasobtained at the same time as the information on Leroy Rodrigue, on January 22, 2008. SeeAudio Recording of Hearing at 2:48:14–2:50:53. In any event, the Carpio Declarationindicates that the information from the Florida Department of Highway Safety & MotorVehicles was forwarded to the Department of Justice as part of Customs’ February 13, 2008litigation report. See Carpio Declaration ¶ 8. Thus, Customs obviously received the infor-mation from the Florida agency at some point before that time.

It further appears that Ronald Rodrigue had used the address on Buffalo Way as his returnaddress on correspondence with Customs in the past, and that certified mail addressed tohim was delivered to that address on some unspecified date(s). See Carpio Declaration ¶ 5(stating that Ronald Rodrigue used Buffalo Way address as return address on correspon-dence with Customs, and also received certified mail at that address; however, Declarationdoes not indicate timeframe); Complaint ¶ 14 (stating that Customs billed Ronald Rodriguein June 2007, July 2007, and August 2007, but silent as to mailing address and mode oftransmission used by Customs, as well as whether Customs received any response); see alsoAudio Recording of Hearing at 02:51:25–02:51:41.

The bottom line is that the Carpio Declaration states unequivocally that the FloridaDepartment of Highway Safety & Motor Vehicles advised Customs that the Buffalo Wayaddress was a prior address for Ronald Rodrigue, superseded by the more recent BambooPalm Way address, and that Customs communicated that fact to the Department of Justicein the February 13, 2008 litigation report — well before the filing of the Complaint on May21, 2008. See Carpio Declaration ¶¶ 6, 8–9.8 On July 2, 2008, Customs once again provided the Department of Justice with the sameinformation — the most recent addresses-of-record as provided by the Florida Departmentof Highway Safety & Motor Vehicles for both Ronald and Leroy Rodrigue, as well as theFlorida agency’s history of all prior addresses-of-record for both men. See Carpio Declara-tion ¶¶ 6–9.9 In the course of the hearing on the pending motions, the Government indicated that it firstlearned of the Bamboo Palm Way address on June 6, 2008, when its May 21, 2008 mailingto Ronald Rodrigue was returned (with a label indicating that the mailing had beenforwarded to the Bamboo Palm Way address from the Buffalo Way address). See AudioRecording of Hearing at 01:08:00–01:08:27, 03:24:08–03:24:19, 3:57:23–3:57:35. As theCarpio Declaration states, however, the information from the Florida Department of


Bamboo Palm Way address. See Audio Recording of Hearing at00:44:31–00:44:49, 00:45:35–00:45:44, 00:46:16–00:47:39,01:12:30–01:13:03, 03:24:30–03:24:37. The mailing to Leroy Rodriguewas not returned. See Audio Recording of Hearing at01:43:46–01:43:53 (stating that May 21, 2008 mailing addressed toRonald Rodrigue was only mailing ever returned to Government).

On July 2, 2008, almost a month after the mailing to RonaldRodrigue had been returned to the Government (and 42 days after thefiling of the Complaint) — with no executed waiver of service in handfrom either of the two Defendants — the Government again mailedcopies of the summons, Complaint, and waiver of service form to theRodrigues. See Pl.’s Motion for Extension of Time; Audio Recordingof Hearing at 00:21:15–00:21:26, 00:52:26–00:52:36,02:57:21–02:57:47.10 For Leroy Rodrigue, the Government used thesame address on 156th Place in Miami. See Audio Recording of Hear-ing at 00:52:38–00:52:51, 02:57:48–02:57:57, 02:58:23–02:58:33. ForRonald Rodrigue, the Government sent the mailing to the BambooPalm Way address — the address that the Florida authorities hadpreviously provided, but which the Government had failed to use forits May 21, 2008 mailing. See Carpio Declaration ¶¶ 6, 8; AudioRecording of Hearing at 00:52:38–00:52:57.11 Neither mailing was

Highway Safety & Motor Vehicles — which Customs provided to the Department of Justicein mid-February 2008 — listed the Bamboo Palm Way address as Ronald Rodrigue’s mostrecent address-of-record, with the Buffalo Way address noted as a prior address. See CarpioDeclaration ¶¶ 6, 8–9.10 As note 6 above explains, addresses obviously become less reliable with the passage oftime. See n.6, supra. Nevertheless, in preparation for its July 2, 2008 mailing, the Govern-ment apparently did not seek updated address-of-record information for either Defendant,whether from the Florida Department of Highway Safety & Motor Vehicles or from anyother source. Instead, the Government relied on the same information that the FloridaDepartment of Highway Safety & Motor Vehicles had provided at some point prior tomid-February 2008. See Carpio Declaration ¶¶ 8–9 (indicating that address informationfrom Florida Department of Highway Safety & Motor Vehicles was forwarded to Depart-ment of Justice for a second time, via email on July 2, 2008).11 The Government erroneously indicated in its papers that the July 2, 2008 mailing wastriggered because the Government had “learn[ed] that Leroy Rodrigue had a new address.”See Pl.’s Motion for Extension of Time (emphasis added). In the course of the hearing,however, the Government advised that it actually meant to refer to Ronald Rodrigue andthe Bamboo Palm Way address. See Audio Recording of Hearing at 00:21:35–00:21:51,02:57:58–02:58:14.

As explained above, however, the Bamboo Palm Way in fact was not a “new” address thatthe Government had just identified. In its February 13, 2008 litigation report, Customs hadprovided the Bamboo Palm Way address to the Department of Justice as the most recentaddress-of-record for Ronald Rodrigue provided by the Florida Department of HighwaySafety & Motor Vehicles. See Carpio Declaration ¶¶ 6, 8. That same litigation report hadadvised the Justice Department that the Buffalo Way address was a prior address. SeeCarpio Declaration ¶¶ 6, 8–9.


returned to the Government. See Audio Recording of Hearing at00:53:28–00:53:33, 01:43:30–01:43:33, 02:58:38–02:58:41.

The Government took no further action in the 57 days that followed.See Audio Recording of Hearing at 00:55:41–00:56:00,02:59:37–02:59:41. Finally, on August 29, 2008 — a mere 21 daysbefore the 120-day period for service of process expired, and with thestatute of limitations long gone — the Government engaged a profes-sional process service firm, Capitol Process Services. See Pl.’s Motionfor Extension of Time; Affidavit of Non-Service; Audio Recording ofHearing at 00:54:48–00:55:40, 02:58:42–02:59:34.

Rather than attempting to serve Ronald Rodrigue at the BambooPalm Way address, the Government instead instructed the processserver to attempt service at 458 Buffalo Way in North Fort Myers —the address to which the summons, Complaint, and waiver of serviceform originally had been mailed on May 21, 2008 (before being for-warded to Bamboo Palm Way), and the address which the FloridaDepartment of Highway Safety & Motor Vehicles had clearly indi-cated was a prior address for Ronald Rodrigue. See Pl.’s Motion forExtension of Time; Affidavit of Non-Service; Audio Recording of Hear-ing at 01:28:31–01:29:30; Carpio Declaration ¶¶ 6, 8–9.

The Government instructed the process servers to attempt to serveLeroy Rodrigue not at the address on 156th Place in Miami (to whichthe two mailings had been sent), but, instead, at 15652 SW 85thTerrace, Miami, Florida 33193 — purportedly a former address ofLeroy Rodrigue, which was the subject of an alleged tip to Customs.See Pl.’s Motion for Extension of Time; Affidavit of Diligent Searchand Inquiry; Audio Recording of Hearing at 00:22:30–00:23:30,03:00:00–03:01:00, 04:16:04–04:16:22.12

According to the Affidavit of Diligent Search and Inquiry executedby the process server who sought to serve Leroy Rodrigue, an indi-vidual named Luis Martinez resides at the 85th Terrace address. SeeAffidavit of Diligent Search and Inquiry. Mr. Martinez advised theprocess server that he “[has] never heard of Leroy Rodrigue,” and that“he [Mr. Martinez] rents from the brother of the owner RonaldHodgkins, who [had] recently passed away.” Id. The affidavit — datedSeptember 15, 2008 — states nothing more of substance. The Gov-ernment elected not to have the process server attempt service onLeroy Rodrigue at the address on 156th Place in Miami,13 or at any

12 There is no indication in the record as to whether the information provided to Customsby the Florida Department of Highway Safety & Motor Vehicles included this 85th Terraceaddress as a prior address-of-record for Leroy Rodrigue. See Carpio Declaration ¶ 9 (statingthat the information provided by the Florida agency “included all prior addresses-of-recordfor both Ronald Rodrigue and Leroy Rodrigue”).


other address. The Government made no additional inquiries andtook no further action to locate or serve Leroy Rodrigue in the threedays remaining before the 120-day period for service of process endedon September 18, 2008.

It is no surprise that the process server who sought to serve RonaldRodrigue at the address on Buffalo Way — the address that theFlorida authorities had identified as Ronald Rodrigue’s prior address– was no more successful. According to the Affidavit of Non-Servicethat he filed, the process server made seven attempts at that addressbetween September 1 and September 13, 2008, and then “discontin-ued attempting service of the Summons and Complaint.” See Affida-vit of Non-Service.14 The Government elected not to send the processserver to the Bamboo Palm Way address — the address that theFlorida Department of Highway Safety & Motor Vehicles had identi-fied as Ronald Rodrigue’s most recent address-of-record, and theaddress to which the U.S. Postal Service had forwarded the Govern-ment’s May 21, 2008 mailing.15 Nor did the Government attemptservice at any other address. The Government made no additionalinquiries and took no further action to locate or serve Ronald Rod-rigue in the five days remaining before the 120-day period for serviceof process ended on September 18, 2008.

Indeed, the Government made no additional inquiries and took nofurther action to locate or serve either of the two Defendants untillate January 2009, after the Court had scheduled a hearing on thepending motions. See Audio Recording of Hearing at01:14:05–01:49:05, 01:51:23–01:52:04, 02:38:10–02:38:47,03:07:35–03:07:45, 03:08:00–03:08:13, 03:08:38–03:08:57. In light ofthe impending hearing on the pending motions, the Government13 The 156th Place address is not only the address to which the Government twice mailedthe summons, Complaint, and waiver of service form, but is also the address at which theGovernment served the two pending motions. See Motion for Extension of Time, at Certifi-cate of Service; Motion for Service by Publication, at Certificate of Service.14 Specifically, the Affidavit of Non-Service states (entirely in upper case letters):

Attempted at 9–1–08 at 4:50 PM no one there. Attempted 9–3–08 at 5:48 PM no onethere. Attempted 9–5–08 at 11:00 AM no one there. Neighbor states they do not know ifanyone lives there. Attempted 9–8–08 at 9:28 AM no one there. Spoke to other neighborwho states they think the renter moved out but his name was not Ronald. Attempted9–10–08 at 8:41 PM no one there. Attempted 9–11–08 10:00 AM no one there. AttemptedSaturday 9–13–08 at 5 PM no one there.

Affidavit of Non-Service.15 The Bamboo Palm Way address is also the address to which the Government mailed thesummons, Complaint, and waiver of service form on July 2, 2008, as well as the address atwhich the Government served the two pending motions. See Motion for Extension of Time,at Certificate of Service; Motion for Service by Publication, at Certificate of Service.


decided to attempt service again. See Audio Recording of Hearing at01:02:42–01:02:53, 01:52:26–01:52:42, 02:11:37–02:12:25,02:14:28–02:14:49, 02:26:28–02:26:45.16

At the April 6, 2009 hearing, the Court learned for the first timethat, at 8:30 a.m. on February 25, 2009 – more than nine months afterthe statute of limitations expired, and more than five months afterthe end of the 120-day period for effecting service of process – aprofessional process server had successfully served Ronald Rodrigueat the Bamboo Palm Way address (the address that the FloridaDepartment of Highway Safety & Motor Vehicles had provided to theGovernment more than a year earlier, and a different address thanthe process server had used in September 2008). See Audio Recordingof Hearing at 00:06:54–00:06:59, 01:01:35–01:02:19,01:03:38–01:04:27, 01:06:19–01:06:25, 02:29:24–02:29:34,02:30:00–02:30:59.17 The Government offered no explanation for itsfailure to timely notify the Court that service had been effected. SeeAudio Recording of Hearing at 00:06:54–00:07:02, 02:32:23–02:32:47.And no proof of service was filed with the court – either before thehearing, or since. See USCIT R. 4(k) (requiring that proof of service befiled with court, except where service has been waived).18

A professional process server reportedly also made an attempt toserve Leroy Rodrigue, at 11:13 a.m. on February 27, 2009, at theaddress on 156th Place — again, a different address than the process

16 Pressed repeatedly by the Court in the course of the hearing, the Government was unableto give a satisfactory explanation of the bases for its decisions to attempt to serve theDefendants at the addresses that it chose. Nor was the Government able to explain why itdid not attempt service at multiple addresses, and instead felt compelled to try only oneaddress at a time for each Defendant. See, e.g., Audio Recording of Hearing at01:07:16–01:10:15, 01:11:06–01:15:32, 01:30:18–01:30:44, 01:36:10–01:39:35,01:41:22–01:41:47, 02:14:49–02:16:44, 02:18:16–02:20:08, 02:20:39–02:20:44,02:23:40–02:23:48, 03:01:15–03:01:28, 03:28:25–03:28:58.17 At the hearing, the Government was necessarily on notice that, if its requests forextensions of time were denied, this action could be subject to dismissal for failure to effectservice on Defendants within the 120-day period for service of process. See, e.g., AudioRecording of Hearing at 00:03:41–00:05:42, 03:25:06–03:25:31. The hearing afforded theGovernment ample opportunity to show good cause for its failure to effect service, or tootherwise make a case for an enlargement of time — which is the purpose of the rulerequiring that a court give a plaintiff prior notice of its intent to dismiss an action suasponte for failure to effect service. See, e.g., Braxton v. United States, 817 F.2d 238, 241 (3dCir. 1987) (explaining that “[t]he requirement of notice provides the delinquent party withan opportunity to demonstrate good cause . . . . The rule thus offers the serving party ameans to avoid an unexpected and perhaps unjustified dismissal.”); Thompson v. Mal-donado, 309 F.3d 107, 109–10 (2d Cir. 2002); Brengettcy v. Horton, 423 F.3d 674, 683 (7thCir. 2005); see also Brown v. District of Columbia, 514 F.3d 1279, 1286–87 (D.C. Cir. 2008).18 See also Audio Recording of Hearing at 00:06:59–00:07:01, 02:32:30–02:32:47,03:59:12–03:59:33, 04:10:32–04:10:47, 04:11:20–04:11:37;


server had used in September 2008.19 However, that attempt was notsuccessful. See Audio Recording of Hearing at 02:42:47–02:44:07,02:44:53–02:45:08. Since that time, the Government has made nofurther efforts to locate or serve Leroy Rodrigue. See Audio Recordingof Hearing at 03:40:56–03:41:28. And the Government failed to askRonald Rodrigue about the whereabouts of his son. See Audio Record-ing of Hearing at 03:41:30–03:44:27. To date, Leroy Rodrigue still hasnot been served.

III.Analysis

Proper service of process “is not some mindless technicality,” but —rather — “a critical part of a lawsuit.” Del Raine v. Carlson, 826 F.2d698, 704 (7th Cir. 1987); Troxell v. Fedders of North America, Inc., 160F.3d 381, 382 (7th Cir. 1998). “[U]nless the procedural requirementsfor effective service of process are satisfied, a court lacks authority toexercise personal jurisdiction over [a] defendant.” Candido v. Districtof Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007) (citations omitted). Inits Motion for an Extension of Time, the Government seeks a 90-dayenlargement of the 120-day period for service of process, to extendfrom September 18, 2008 to December 17, 2008 the Government’sdeadline for effecting service on the two Defendants. See Plaintiff ’sMotion for an Extension of Time (“Pl.’s Motion for Extension ofTime”). In its later-filed Motion for Leave to Serve by Publication andMotion for an Extension of Time, the Government requests a further90-day extension of the deadline for service of process (i.e., an exten-sion through March 17, 2009), and, moreover, seeks leave to effectconstructive service via publication in a Florida newspaper. SeePlaintiff ’s Motion for Leave to Serve by Publication and Motion for anExtension of Time (“Pl.’s Motion for Service by Publication”).

The Government’s motions for extensions of time and for leave toserve by publication are analyzed below, in turn. As discussed there,19 At the hearing on the pending motions, the Government intimated that the processserver may have “staked out” the address on 156th Place. See Audio Recording of Hearingat 00:26:45–00:26:59. There is, however, no evidence to support that assertion. And itstrains credulity even to suggest that a process server who had spent hours “staking out”a location would then state the date and time of the attempted service with such pinpointprecision — February 27, 2009, at 11:13 a.m. See Audio Recording of Hearing at02:42:47–02:44:07, 02:44:53–02:45:08.

Again, as note 6 above explains, addresses obviously become less reliable with the passageof time. See n.6, supra. Nevertheless, in preparation for its February 2009 attempts to effectpersonal service on the Defendants, the Government apparently did not seek updatedaddress-of-record information for either Defendant, whether from the Florida Departmentof Highway Safety & Motor Vehicles or from any other source, relying instead on informa-tion provided to it more than a year before.


the Government has failed to show good cause for its failure to servethe two Defendants within the 120-day period for effecting service ofprocess. Further, although the Government failed to argue that anextension of time would be warranted even in the absence of goodcause, a review of the relevant factors counsels against a discretion-ary extension. The requested extensions of time must therefore bedenied. Moreover, the denial of the requested extensions of timemoots the motion for leave to serve by publication. However, as setforth below, even if the extensions of time were granted, the Govern-ment has failed to comply with the requirements of the relevantFlorida statute. Accordingly, even if the motion for leave to serve bypublication were evaluated on its merits, the motion neverthelesswould be denied.

A. The Government’s Motions to Extend theTime for Service of Process

The time limits for service of process in this action are governed byRule 4(l) of the Rules of the Court, which provides, in relevant part:

If a defendant is not served within 120 days after the complaintis filed, the court — on motion or on its own after notice to theplaintiff — must dismiss the action without prejudice againstthat defendant or order that service be made within a specifiedtime. But if the plaintiff shows good cause for the failure, thecourt must extend the time for service for an appropriate period.

USCIT R. 4(l); see also Fed.R.Civ.P. 4(m).20 Thus, “[a] court mustgrant additional time to complete service if plaintiff demonstratesgood cause for failing to serve defendant within the 120-day period.”

20 The text of USCIT Rule 4(l) is identical to that of Rule 4(m) of the Federal Rules of CivilProcedure, except for conforming changes required by differences in the numbering of thetwo sets of rules.

Significantly, as the text of the rule indicates, the required showing is good cause for failureto effect service within the 120-day period, not good cause for an extension of time. Thus, asdiscussed in greater detail below, the principal focus of the “good cause” inquiry is on thediligence (or lack thereof) on the part of the plaintiff — not on the consequences of the denialof a requested extension.

Accordingly, as a matter of logic, courts generally have held that a “good cause” determi-nation takes no account of factors such as whether an action will be time-barred if anextension is not granted (except perhaps to note that such a fact would be expected toenhance a plaintiff ’s diligence in attempting to effect timely service). On the other hand, theexpiration of the statute of limitations, as well as any attempts by defendant to evadeservice, are factors to be considered in determining whether to grant an extension as amatter of discretion. See, e.g., Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amend-ments (stating that, even absent showing of good cause, “[r]elief may be justified, forexample, if the applicable statute of limitations would bar the refiled action, or if thedefendant is evading service or conceals a defect in attempted service”).


1 Moore’s Federal Practice § 4.82[1] (Matthew Bender 3d ed.) (em-phasis added). In addition, the court may grant an extension evenabsent good cause, as a matter of the court’s discretion. See id. at §4.83.

As discussed below, the Government in this case could hardly havedone less to effect service of process on the Defendants within the120-day period established for that purpose. Under the circum-stances, extending the time for service here would set a dangerousprecedent, and would grant the Government (and, indeed, all parties)virtual carte blanche in future cases.

1. Extension of Time for “Good Cause”

In the case at bar, the Government asserts broadly that there is“good cause” for its failure to serve Defendants within the 120-dayperiod following the filing of the Complaint. See Pl.’s Motion forExtension of Time at 1; Pl.’s Motion for Service by Publication at 1.But the facts belie the Government’s claim.21

As one leading treatise explains the concept of “good cause”:“[G]ood cause is likely (but not always) to be found when theplaintiff ’s failure to complete service in timely fashion is a resultof the conduct of a third person, typically the process server, thedefendant has evaded service of process or engaged in mislead-ing conduct, the plaintiff has acted diligently in trying to effectservice or there are understandable mitigating circumstances, orthe plaintiff is proceeding pro se or in forma pauperis. Pro sestatus or any of the other listed explanations for a failure tomake timely service, however, is not automatically enough toconstitute good cause for purposes of [Federal Rule of CivilProcedure] 4(m) [or USCIT Rule 4(l)].

4B Charles Alan Wright & Arthur R. Miller, Federal Practice andProcedure § 1137 (3d ed. 2002) (emphasis added). On the other hand,the treatise explains:

21 The plaintiff bears the burden of establishing good cause for its failure to effect servicewithin the 120-day period. Wright & Miller, Federal Practice and Procedure § 1137; Moore’sFederal Practice § 4.82[1]. That burden is a heavy one to bear. See, e.g., Beauvoir v. U.S.Secret Service, 234 F.R.D. 55, 56 (E.D.N.Y. 2006) (stating that “[a] party seeking a goodcause extension bears a heavy burden of proof”) (quotation omitted).

In the instant case, both the Government’s Motion for an Extension of Time and its Motionfor Service by Publication offer little concerning the specific facts and details of the Gov-ernment’s attempts to locate and effect service of process on the two Defendants (nevermind virtually barren of law). See Pl.’s Motion for Extension of Time; Pl.’s Motion for Serviceby Publication. In any event, as discussed herein, even if counsel’s numerous unsworn andundocumented factual representations made orally in the course of the hearing in thismatter are considered, the Government still has not carried its burden.


[F]ederal courts have held that good cause has not been shownin a large number of cases and have rejected excuses based on afailure to receive a waiver of formal service, ignorance of the rule[on service of process], the absence of prejudice to the defendant,office moves or personal problems, the belief that the time re-quirement was only technical, the filing of an amended com-plaint, inadvertence of counsel, or the expenditure of efforts thatfall short of real diligence by the serving party.

Wright & Miller, Federal Practice and Procedure § 1137 (emphasisadded).22 Although the courts have articulated varying formulationsof the standard for “good cause,” they are in accord on the require-ment of a showing of “real diligence by the serving party.” 23

In a case such as this, “good cause” requires that a plaintiff exert“such efforts at service as are consistent with a recognition that 120

22 See, e.g., In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (stating that “inadvertence ornegligence alone do not constitute ‘good cause,’” “[m]istake of counsel or ignorance of therules . . . usually do not suffice” as good cause, “[u]nexplained assertions of miscalculation[of deadlines] do not constitute ‘good cause,’” and “absence of prejudice alone does notconstitute good cause”); Braxton, 817 F.2d at 241 (holding that attorney’s inadvertence doesnot constitute good cause); Lopez v. United States, 129 F. Supp. 2d 1284, 1295 (D. N.M.2000), aff ’d, 21 Fed Appx. 879 (10th Cir. 2001) (explaining that “[t]he ‘good cause’ standard,as interpreted by the courts, is quite restrictive. Inadvertence, negligence, ignorance of theservice requirements, and reliance on a process server have all been determined not toconstitute good cause. . . . Similarly, the fact that a defendant may have had actual noticeof the suit, and has suffered no prejudice, does not constitute good cause.”); Jonas v.Citibank, N.A., 414 F. Supp. 2d 411, 416 (S.D.N.Y. 2006) (stating that “a mistaken beliefthat service was proper does not constitute good cause,” and that “neglect and inadvertencedo not suffice to support good cause”); Beauvoir, 234 F.R.D. at 56 (“‘[a]n attorney’s inad-vertence, neglect, mistake or misplaced reliance does not constitute good cause’”) (quotationomitted).23 See also, e.g., Habib v. General Motors Corp., 15 F.3d 72, 74 (6th Cir. 1994) (noting that“[t]o demonstrate good cause, other courts have held that a plaintiff may . . . show thathe/she made a reasonable and diligent effort to effect service”); Resolution Trust Corp. v.Starkey, 41 F.3d 1018, 1022 (5th Cir. 1995) (stating that, “in short, one is required to bediligent in serving process, as well as pure of heart, before good cause will be found”);Shuster v. Conley, 107 F.R.D. 755, 757 (W.D. Pa. 1985) (stating that “[a] court will not grantan extension [for the service of process] where the plaintiff has not demonstrated a rea-sonable effort to effect service prior to the running of the 120 day period”).

Indeed, a number of courts have gone so far as to hold that good cause exists only where thefailure to effect service within the 120-day period is attributable to external causes, beyondthe plaintiff ’s control. See, e.g., Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d1277, 1281 (11th Cir. 2007) (explaining that “[g]ood cause exists ‘only when some outsidefactor[,] such as reliance on faulty advice, rather than inadvertence or negligence, pre-vented service’”) (quotation omitted); Beauvoir, 234 F.R.D. at 56 (noting that “[g]ood causeis ‘generally found only in exceptional circumstances where the plaintiff ’s failure to serveprocess in a timely manner was the result of circumstances beyond its control’”) (quotationomitted).


days may otherwise mark the death of the action.” United States v.Gen’l Int’l Mktg. Group, 14 CIT 545, 548, 742 F. Supp. 1173, 1176(1990) (quoted with approval in United States v. World CommoditiesEquipment Corp., 32 CIT _____, _____, 2008 WL 748677 * 2 (2008));see also Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996)(Easterbrook, J.) (affirming dismissal of action, noting that “[a]nattorney who files suit when the statute of limitations is about to

Although the plaintiff ’s diligence is the critical factor in evaluating the existence of “goodcause” for a failure to effect service within the 120-day period, other factors that some courtshave considered include: whether the defendant had actual notice of the complaint (see Inre Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)); whether the defendant would be prejudicedby the extension of time (see In re Sheehan, 253 F.3d at 512; Feingold v. Hankin, 269 F.Supp. 2d 268, 276 (S.D.N.Y. 2003); Goodstein v. Bombardier Capital, Inc., 167 F.R.D. 662,666 (D. Vt. 1996)); whether the plaintiff would be severely prejudiced if the complaint weredismissed (see In re Sheehan, 253 F.3d at 512); the length of time taken to effect service (seeJonas, 414 F. Supp. 2d at 416); and whether the plaintiff sought a timely extension of time(see id.). Each of these factors is analyzed in detail — in the context of the facts of this case— in section II.A.2 below, in considering whether a discretionary extension of time isjustified.

Here, for purposes of analyzing the presence or absence of “good cause,” it suffices to notethat the weight of the authority holds that even a defendant’s actual notice of the complaintdoes not constitute “good cause” for failure to effect service within the 120-day periodestablished for that purpose. See, e.g., West v. Terry Bicycles, Inc., 230 F.3d 1382, 2000 WL152805 * 2 (Fed. Cir. 2000) (per curiam) (unpublished) (observing that “a defendant’sknowledge of the pendency of a lawsuit against it does not cure the plaintiff ’s insufficientservice under Rule 4”); LSJ Investment Co. v. O.L.D., Inc., 167 F.3d 320, 322, 324 (6th Cir.1999) (refusing to substitute actual knowledge of action for proper service under Fed.R-.Civ.P. 4); Tuke v. United States, 76 F.3d 155, 157 (7th Cir. 1996) (citing Gabriel v. UnitedStates, 30 F.3d 75 (7th Cir. 1994), for the proposition that “the plaintiff must serve theUnited States in the way Rule 4 requires; actual notice is insufficient”); Despain v. SaltLake Area Metro Gang Unit, 13 F.3d 1436, 1439 (10th Cir. 1994) (stating that actual noticedoes not constitute good cause); Feingold v. Hankin, 269 F. Supp. 2d at 276 (noting that“actual notice is not considered sufficient to satisfy the standards [for good cause]”);Candido, 242 F.R.D. at 162 (observing, inter alia, that “simply being on notice of a lawsuit‘cannot cure an otherwise defective service’”).

Similarly, in evaluating good cause for failure to effect service of process within the 120-dayperiod, courts generally decline to consider “the absence of prejudice to the defendant.” SeeWright & Miller, Federal Practice and Procedure § 1137; see also Despain, 13 F.3d at 1439(stating that absence of prejudice to defendant alone does not constitute good cause); MCITelecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (same).

Most courts have also held that, although the fact that a re-filed action would be time-barred may be considered in determining whether to grant an extension of time as a matterof discretion, it is not a factor to be weighed in determining “good cause.” See, e.g., Petrucelliv. Bohringer and Ratzinger, GmBH, 46 F.3d 1298, 1305–06 (3d Cir. 1995) (holding that “adistrict court may not consider the fact that the statute of limitations has run until after ithas conducted an examination of good cause”) (emphasis added); Mann v. American Air-lines, 324 F.3d 1088, 1090–91 (9th Cir. 2003) (explaining that, if plaintiff has not demon-strated good cause for extension of time, the court may consider the fact that the statute oflimitations would bar refiling as a factor in deciding whether to grant extension of time asa matter of court’s discretion); Despain, 13 F.3d at 1439 (stating that severe prejudice to


expire must take special care to achieve timely service of process,because a slip-up is fatal”). The plaintiff who seeks to rely on the goodcause provision [of the rule governing the timing of service of process]must show meticulous efforts to comply with the rule.” In re Kirkland,86 F.3d 172, 176 (10th Cir. 1996) (emphasis added). “[H]alf-heartedefforts” at service simply do not suffice. Petrucelli v. Bohringer andRatzinger, GmBH, 46 F.3d 1298, 1307 (3d Cir. 1995) (quoting Lovelacev. Acme Market, Inc., 820 F.2d 81, 84 (3d Cir. 1987)). In short, “[t]helesson to the federal plaintiff ’s lawyer is not to take any chances.Treat the 120 days with the respect reserved for a time bomb.” Petru-celli, 46 F.3d at 1307 (quoting Braxton v. United States, 817 F.2d 238,241 (3d Cir. 1987), quoting Siegel, Practice Commentary on Amend-ment of Federal Rule 4 (Eff. Feb. 26, 1983) with Special Statute ofLimitations Precautions, 96 F.R.D. 88, 109 (1983)) (emphasis added);see also Cox v. Sandia Corp., 941 F.2d 1124, 1126 (10th Cir. 1991)(same quotation).

Here, the Government’s efforts to effect service within the 120-dayperiod fell well short of “meticulous.” Nothing about the Govern-ment’s actions could be described as reflecting “a recognition that 120days may otherwise mark the death of the action,” or a sense that the120-day period was a ticking “time bomb.”

The Government’s approach to service in this case was simply toocavalier. “It is . . . clear that relying on [reaching defendants via mail]cannot ordinarily be considered a reasonable attempt to accomplishservice within 120 days and cannot be viewed as a recognition of the

plaintiffs due to expiration of statute of limitations does not constitute good cause); Lau v.Klinger, 46 F. Supp. 2d 1377, 1381 (S.D. Ga. 1999) (noting that “courts have . . . held thatthe court must first determine the issue of good cause before proceeding to the issue of thestatute of limitations”); Madison v. BP Oil Co., 928 F. Supp. 1132, 1138 (D. Ala. 1996)(noting that expiration of statute of limitations does not figure into good cause determina-tion); see also United States v. Gen’l Int’l Mktg. Group, 14 CIT 545, 549, 742 F. Supp. 1173,1177 (1990) (in evaluating good cause for failure to make service within 120-day period,declining to consider “the fact that the government cannot renew this action”).

Similarly, courts have generally ruled that a plaintiff ’s ultimate success in serving hiscomplaint does not constitute good cause for failure to effect service within the 120-dayperiod. See, e.g., Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83, 85 (3d Cir. 1987) (affirmingdismissal based on lack of good cause, even though defendant had been served 55 days after120-day period expired); United States v. Gen’l Int’l Mktg. Group, 14 CIT at 549, 742 F.Supp. at 1177 (in evaluating good cause for failure to make service within 120-day period,declining to consider fact that “the [government] ultimately succeeded in making personalservice after the 120 day deadline”).

Finally, although a handful of cases cite the filing of a timely request for an extension oftime as a factor in determining good cause, they are few and far between. As noted above,the principal factor in determining “good cause” for the failure to effect service of processwithin the 120-day period is the diligence of plaintiff ’s attempts during that period.


existence of a real deadline.” United States v. Gen’l Int’l Mktg. Group,14 CIT at 549, 742 F. Supp. at 1176. “When twenty days have passedafter mailing without return of the acknowledgment that the mailwas received [or here, for example, when a certain amount of time haspassed without the return of an executed waiver of service form], thediligent plaintiff should recognize that other means of service willhave to be used within the approximately 100 days which remain.”Id., 14 CIT at 549, 742 F. Supp. at 1176; see also Petrucelli, 46 F.3d at1307 (affirming denial of extension of time, stating that “[a] prudentattorney exercising reasonable care and diligence would have in-quired further into the matter when it was obvious that the acknowl-edgment form [included with plaintiff ’s attempted service of com-plaint] was not forthcoming”).24 In the instant case, when the

24 One leading treatise foresees and expressly warns against exactly what the Governmentdid in this case:

Under amended Rule 4, utilization of the waiver procedure of [Fed.R.Civ.P.] 4(d) [USCITRule 4(c)] has become as common as traditional personal service. There should not be agreat amount of conflict between [Fed.R.Civ.P.] Rule 4(m) [USCIT Rule 4(l)] and therequest-for-waiver provision, although plaintiffs will have to be wary of consuming toomuch of the 120 days pursuing a waiver of formal service. Should the plaintiff ’s attemptto use the waiver procedure prove unsuccessful and cause the plaintiff to miss the[Fed.R.Civ.P.] Rule 4(m) [USCIT Rule 4(l)] deadline, the diligence with which theplaintiff has been pursuing service should determine whether the court will grant agood-cause extension. As long as plaintiffs keep the 120-day deadline in sight, problemsof tardy service can be avoided.

Wright & Miller, Federal Practice and Procedure § 1137 (emphases added).

The U.S. Court of Appeals for the Seventh Circuit has sounded a similar note of cautionabout plaintiffs’ over-reliance on waiver of service:

[Rule 4’s provisions] for inexpensive notification of a lawsuit accompanied by a waiverof service offer a useful alternative . . . . In the final analysis, however, the rule does notabolish a defendant’s right to proper service of process. Perhaps this case will serve as awarning to lawyers to watch the time that has elapsed after they mail out a waiver formand to act promptly thereafter if the defendant proves uncooperative.

Troxell, 160 F.3d at 383 (Wood, J.) (emphasis added); id. (underscoring that a defendant isentitled to “stand on its right to receive formal service,” and that “[n]othing in Rule 4 obligesa defendant to execute a waiver of service”; “a defendant . . . that wants to stand onformalities, for whatever reason, is entitled to do so, as long as it is willing to pay for theprivilege [by paying the costs of service]. [Plaintiff ’s] effort . . . somehow to blame [thedefendant] for [the plaintiff ’s] problems because [the defendant] refused to return thewaiver form fundamentally misunderstands the system established by Rule 4.”).

See also, e.g., West v. Terry Bicycles, 230 F.3d 1382, 2000 WL 152805 * 2 (per curiam)(unpublished) (observing that “[u]nless the addressee consents to a request for waiver offormal service, receipt of a complaint by mail does not give rise to any obligation to answerthe lawsuit”); Lepone-Dempsey, 476 F.3d at 1281-82 (emphasizing that “the defendant is notrequired to waive formal service,” and that “if the defendant fails to respond to service bymail, the plaintiff must effect personal service”; “While the plaintiffs may have had goodreason to think that they could rely on [the defendant’s] assertion that he would sign andreturn the waiver forms, the plaintiffs were responsible for formally serving the defendants


Government’s first mailing failed to yield executed waivers of servicefrom the two Defendants, the Government simply made anothermailing, rather than taking more active steps to accomplish service ofprocess. See Pl.’s Motion for Extension of Time; Audio Recording ofHearing at 00:21:15–00:21:26, 00:52:26–00:52:36, 02:57:21–02:57:47.

Moreover, to the extent that the Government sought to use the U.S.mail to contact the Defendants and seek waivers of service, its at-tempts were sloppy and haphazard to say the least. Four monthsbefore the Complaint was filed, the Florida Department of HighwaySafety & Motor Vehicles had provided the Government with RonaldRodrigue’s most recent address-of-record — the Bamboo Palm Wayaddress, where he was eventually served earlier this year. At thesame time, the Florida authorities had advised the Government thatthe Buffalo Way address was Ronald Rodrigue’s prior address. SeeCarpio Declaration ¶¶ 6, 8–9. Inexplicably, the Government never-theless sent its first mailing to Ronald Rodrigue at the out-of-dateBuffalo Way address. See Complaint, at Certificate of Service. And itappears that, even as to that out-of-date Buffalo Way address, theGovernment got the zip code wrong. See Audio Recording of Hearingat 00:44:49–00:45:21, 00:49:34–00:50:47, 01:02:22–01:02:38 (notingthat 33917 is correct zip code); Complaint, at Certificate of Service(indicating that mailing was sent to zip code 33197).

Under circumstances such as these, the Government’s attempts tocontact the Defendants through the use of mail not only do notconstitute evidence of diligence in attempting to effect service withinthe 120-day period — quite to the contrary, such careless mistakesaffirmatively refute any suggestion that the Government’s efforts toeffect timely service were “meticulous,” as required to establish theexistence of “good cause.”

The Government’s tardiness in retaining a professional processservice firm similarly weighs heavily against a finding of “goodcause.” See, e.g., United States v. Gen’l Int’l Mktg. Group, 14 CIT at549, 742 F. Supp. at 1176 (finding no good cause in light of, inter alia,“the long period of time which [e]lapsed between the failure of mailservice and the day when personal service was first attempted”); Coxv. Sandia Corp., 941 F.2d at 1126 (affirming dismissal for failure to

when the waiver forms were not returned.”); Lau v. Klinger, 46 F. Supp. 2d at 1380–81(holding that defendant’s refusal to return acknowledgment of mail service of process doesnot constitute bad faith on the part of defendant, and does not constitute good cause; “Mailservice is an option for defendants, it is not mandatory, nor is it a ‘duty,’ and plaintiffscannot cast their burden of service onto the defendants by unfounded accusations of badfaith. . . . When a defendant chooses not to respond to mail service, the plaintiff must effectservice by other lawful means. . . . A [defendant’s] mere refusal to elect the mail alternativeis not a showing of bad faith.”).


effect timely service, noting that “[h]ad [plaintiff ’s] counsel promptlysent process to the server, he might well have avoided the instantproblem”); McIsaac v. Ford, 193 F. Supp. 2d 382, 384 (D. Mass. 2002)(finding no good cause where, inter alia, plaintiff “[did] nothing untilthe last minute” to retain a professional process server).25 Here, theGovernment failed to engage a professional process service firm untilonly 21 days of the 120-day period remained.

In addition, rather than dispatching professional process servers toattempt service at multiple addresses, the Government attemptedservice at only a single address for each of the Defendants. TheGovernment sent a professional process server to attempt service onLeroy Rodrigue at an address on 85th Terrace, where the resident hadno knowledge of the Defendant. See Affidavit of Diligent Search andInquiry. For whatever reason, the Government elected not to send aprocess server to the address on 156th Place in Miami — the addressthat the Florida Department of Highway Safety & Motor Vehicles hadidentified as Leroy Rodrigue’s most recent address-of-record. See Car-pio Declaration ¶ 7. Nor did the Government attempt personal serviceon Leroy Rodrigue at any other address. The Government made noadditional inquiries and took no further action to locate or serveLeroy Rodrigue in the three days remaining before the 120-day periodfor service of process ended on September 18, 2008. See United Statesv. Gen’l Int’l Mktg. Group, 14 CIT at 549, 742 F. Supp. at 1176 (findingno good cause in light of, inter alia, “the lack of any further attemptin the eleven days remaining” in the 120-day period, following a brieffailed attempt by professional process server).

The Government’s efforts to deploy a professional process server toserve Ronald Rodrigue were, if anything, even more unimpressive. Aswith Leroy Rodrigue, rather than instructing the professional processserver to try multiple addresses in the Government’s possession, theGovernment instead directed the process server to attempt to serveRonald Rodrigue at only one address. That address was the addresson Buffalo Way, which the Florida Department of Highway Safety &Motor Vehicles had clearly identified as Ronald Rodrigue’s prior ad-dress. See Carpio Declaration ¶ 8.

Moreover, as with Leroy Rodrigue, after attempts to serve RonaldRodrigue at the indicated address failed, the Government simply saton its hands for the remainder of the 120-day period, as the sandcontinued to trickle through the hourglass. Incredibly, for whatever

25 See also, e.g., United States v. Britt, 170 F.R.D. 8, 9 (D. Md. 1996) (holding that plaintiff ’sinaction over period of more than 90 days, during which time defendant failed to respondto request for waiver of service, did not support finding of good cause warranting extensionof time to effect service; nor was discretionary extension of time appropriate).


reason, the Government elected not to send a process server to theaddress on Bamboo Palm Way — the address that the Florida De-partment of Highway Safety & Motor Vehicles had identified asRonald Rodrigue’s most recent address-of-record, and, in fact, theaddress at which Ronald Rodrigue was eventually served, in lateFebruary of this year. See Carpio Declaration ¶ 8; Audio Recording ofHearing at 00:06:54–00:06:59, 01:01:35–01:02:19, 01:03:38–01:04:27,01:06:19–01:06:25, 02:29:24–02:29:34, 02:30:00–02:30:59.26 Nor didthe Government attempt personal service on Ronald Rodrigue at anyother address. The Government made no additional inquiries andtook no further action to locate or serve Ronald Rodrigue in the fivedays remaining before the 120-day period for service of process endedon September 18, 2008. See United States v. Gen’l Int’l Mktg. Group,14 CIT at 549, 742 F. Supp. at 1176 (cited above).

It is no excuse to say — as the Government suggested at thehearing on the pending motions — that the Government was ambiva-lent about and lacked confidence in the addresses that it had for thetwo Defendants. See, e.g., Audio Recording of Hearing at1:07:59–1:08:15, 3:57:54–3:57:59, 04:24:54–04:24:56. In such a situa-tion, a diligent plaintiff exerting “meticulous efforts” to accomplishproper service within the 120-day period would have dispatched pro-fessional process servers to all known potential addresses in its pos-session, and, further, would have updated its research and under-taken additional research to identify any other potential addresses, tolocate the missing defendants.

In contrast, here (as discussed above) the Government contenteditself with sending professional process servers to a single address foreach of the Defendants — and in neither case was it the address thatthe Florida Department of Highway Safety & Motor Vehicles hadidentified as the respective Defendant’s most recent address-of-record. See Affidavit of Diligent Search and Inquiry; Affidavit ofNon-Service; Carpio Declaration ¶¶ 7–8. Moreover, the Governmentnever sought updated contact information from that Florida agency,and instead continued to rely on addresses that the agency hadprovided some eight months before the September 18, 2008 deadlinefor service of process. See Audio Recording of Hearing at00:19:55–00:20:10, 02:47:20–02:48:05 (stating that report of Florida

26 Had the Government made reasonable attempts to serve Ronald Rodrigue at the BambooPalm Way address in September 2008 (prior to the expiration of the 120-day period), thereis no reason to believe that proper service could not have been achieved. And, if theGovernment had asked Ronald Rodrigue about the whereabouts of his son, it might wellhave been possible for the Government to effect timely service on Leroy Rodrigue as well.See generally n.59, infra (cataloguing cases concerning contacting relatives to locate absen-tee defendants).


Department of Highway Safety & Motor Vehicles is dated January 22,2008). Finally, the Government failed to undertake any additionalresearch to use other sources to identify other potential addresses forthe Defendants.27 And for at least the last three days of the 120-dayperiod, the Government did absolutely nothing — nothing whatsoever— to locate or effect service on the two Defendants.

The record of action — and inaction — outlined above does notportray the Government as a plaintiff intent on diligently seeking toeffect proper service of process on the Defendants in order to ensurethe viability of its case, ever-mindful that the 120-day period forservice of process was a ticking “time bomb” with the potential to“mark the death of the action.” See Braxton, 817 F.2d at 241 (quota-tion omitted); United States v. Gen’l Int’l Mktg. Group, 14 CIT at 548,742 F. Supp. at 1176.28 The Government simply has not shown “goodcause” for its failure to serve the Defendants within the 120-dayperiod following the filing of its Complaint in this matter. Nor can itdo so. The Government therefore is not entitled to an extension oftime to effect service of process.

2. Extension of Time Absent Good Cause, As a Matterof Discretion

Under USCIT Rule 4(l)—like Rule 4(m) of the Federal Rules of CivilProcedure — a court may, in its discretion, grant an extension of timeto effect service even in the absence of good cause. See Henderson v.United States, 517 U.S. 654, 662–63 (1996) (citing Fed.R.Civ.P. 4(m),Advisory Committee Note, 1993 Amendments). However, the Govern-

27 See, e.g., United States v. Tobins, 483 F. Supp. 2d 68, 78–79 (D. Mass. 2007) (emphasizingthat “in hindsight, other efforts could have been made,” but identifying as “reasonableefforts” exerted to locate and serve defendant: (1) contact with defendant’s counsel to obtaindefendant’s address; (2) confirming that address “using a postal tracer”; (3) “speakingdirectly with [defendant’s] wife”; and (4) “various attempts to identify an updated addressfor [defendant], which included Postal Service tracers, searches of Department of MotorVehicles records, and searches for wage reports”).

See also Shuster v. Conley, 107 F.R.D. at 757 (in considering motion to serve by publication,suggesting as “examples of a good faith effort to locate a defendant: 1) inquiries of postalauthorities, 2) inquiries of relatives, neighbors, friends, and employers of the defendant,and 3) examinations of local telephone directories, voter registration records, [and] local taxrecords”); nn.52–115, infra (identifying wide range of sources and methods required bycourts and/or used by diligent plaintiffs in other cases to locate and serve process onabsentee defendants).28 See also McIsaac v. Ford, 193 F. Supp. 2d at 384 (denying extension of time to effectservice, explaining that “[t]he risk of [what was in effect] a dismissal with prejudice is onethat [plaintiff] assumed by waiting until two days before the expiration of the statute oflimitations to file his Complaint and then doing nothing until the last minute to have itserved”).


ment failed to seek such an extension here. See Pl.’s Motion forExtension of Time (arguing only that Government has shown “goodcause” for failure to serve within 120-day period; making no argu-ment that, in the alternative, extension should be granted as a matterof court’s discretion); Pl.’s Motion for Service by Publication (same).29

In any event, even had the Government argued that it should begranted a discretionary extension in this case, that request wouldhave been denied. Factors that courts have considered in determiningwhether to extend the time for service of process even in the absenceof a showing of good cause include whether “the statute of limitationswould bar the refiled action”;30 whether “the defendant is evadingservice or conceal[ed] a defect in attempted service”;31 whether thedefendant had actual notice of the complaint;32 whether the

29 Compare, e.g., United States v. World Commodities, 32 CIT at ____, 2008 WL 748677 * 3(where Customs argued that “even if no good cause exists, the court should exercise itsdiscretion to grant an extension of time for service”); Zapata v. City of New York, 502 F.3d192, 197 (2d Cir. 2007) (where plaintiff “argued to the district court both that he had showngood cause and that the time-bar justified an extension even in the absence of good cause”);United States v. Tobins, 483 F. Supp. 2d at 77 (where government argued that an extensionof time was warranted “because it has shown good cause for any delay,” and, further, that“even if [the] court finds no good cause for a delay. . . , . . . [the] court should exercise itsdiscretion and grant an extension of time to perfect service of process”).

See also Thompson v. Brown, 91 F.3d 20, 21–22 (5th Cir. 1996) (holding that district courtwas not obligated to address its discretionary power to grant extension of time for serviceof process where plaintiff failed to argue that it should be granted an extension even absenta showing of good cause).30 See Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments (stating that, evenabsent showing of good cause, “[r]elief may be justified, for example, if the applicablestatute of limitations would bar the refiled action”); see also, e.g., Zapata, 502 F.3d at197–98; Lepone-Dempsey, 476 F.3d at 1282; Horenkamp v. Van Winkle & Co., 402 F.3d 1129,1132–33 (11th Cir. 2005); Mann v. American Airlines, 324 F.3d at 1090–91; Troxell, 160 F.3dat 383; Petrucelli, 46 F.3d at 1305–08; United States v. World Commodities, 32 CIT at _____,2008 WL 748677 * 2, 4; United States v. Tobins, 483 F. Supp. 2d at 79–80; Beauvoir, 234F.R.D. at 58; Feingold v. Hankin, 269 F. Supp. 2d at 277; McIsaac v. Ford, 193 F. Supp. 2dat 384; Goodstein, 167 F.R.D. at 666.31 See Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments (stating that, evenabsent showing of good cause, “[r]elief may be justified, for example, . . . if the defendant isevading service or conceals a defect in attempted service”); see also, e.g., Lepone-Dempsey,476 F.3d at 1282; Horenkamp, 402 F.3d at 1132–33; Petrucelli, 46 F.3d at 1305–06; UnitedStates v. World Commodities, 32 CIT at _____, 2008 WL 748677 * 2, 4; Beauvoir, 234 F.R.D.at 58; Feingold v. Hankin, 269 F. Supp. 2d at 277; Goodstein, 167 F.R.D. at 666.32 See, e.g., Zapata, 502 F.3d at 198-99; Horenkamp, 402 F.3d at 1133; Troxell, 160 F.3d at383; United States v. World Commodities, 32 CIT at _____, 2008 WL 748677 * 4; UnitedStates v. Tobins, 483 F. Supp. 2d at 79–80; Beauvoir, 234 F.R.D. at 58–59; Lane v. LucentTechs., Inc., 388 F. Supp. 2d 590, 597 (M.D. N.C. 2005); Feingold v. Hankin, 269 F. Supp. 2dat 277.


defendant would be prejudiced by the extension of time;33 whetherservice of process was eventually achieved, and, if so, when;34 andwhether the plaintiff sought a timely extension of time.35 As outlinedbelow, none of these factors militates in favor of an extension of timein this case.

The relevant Advisory Committee Note expressly identifies twofactors that may justify the grant of an extension of time for serviceof process notwithstanding the absence of good cause:

Relief may be justified, for example, if the applicable statute oflimitations would bar the refiled action, or if the defendant isevading service or conceals a defect in attempted service.

Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments (em-phases added).33 See, e.g., Zapata, 502 F.3d at 197–99; Troxell, 160 F.3d at 383; United States v. WorldCommodities, 32 CIT at _____, 2008 WL 748677 * 3–4 (noting defendant’s claim thatplaintiff “would suffer no prejudice from the delay” in service, but observing that, inter alia,“there is no clear indication that the defendant had actual notice of the claim” within the120-day period); United States v. Tobins, 483 F. Supp. 2d at 79–80; Beauvoir, 234 F.R.D. at58–59; Feingold v. Hankin, 269 F. Supp. 2d at 277; Goodstein, 167 F.R.D. at 666.34 See, e.g., Zapata, 502 F.3d at 194, 198–99 (service four days late, discussed in context ofprejudice to defendant); Horenkamp, 402 F.3d at 1130, 1133 (service 29 days late); Lane v.Lucent Techs., 388 F. Supp. 2d at 597 (service three days late); see also Troxell, 160 F.3d at383; Goodstein, 167 F.R.D. at 666; United States v. World Commodities, 32 CIT at _____,2008 WL 748677 * 1, 3 (although court notes plaintiff ’s argument that service was less thanone month late, that argument is not directly addressed); United States v. Tobins, 483 F.Supp. 2d at 70, 81 (although court notes that service has been effected, court does notdirectly discuss the factor); Jonas, 414 F. Supp. 2d at 416; McIsaac v. Ford, 193 F. Supp. 2dat 382 (court notes that three defendants were served only two or three days late, but doesnot directly address the factor).35 See, e.g., Zapata, 502 F.3d at 199 (motion for extension of time filed nunc pro tunc);United States v. Tobins, 483 F. Supp. 2d at 81 (failure to seek extension of time); UnitedStates v. World Commodities, 32 CIT at _____, 2008 WL 748677 * 1, 4 (although court notesthat motion for extension of time was filed out-of-time, court does not directly address thefactor); McIsaac v. Ford, 193 F. Supp. 2d at 384 (court holds that, absent timely motion forextension of time, court will not entertain request for discretionary extension of time forservice of process, even where statute of limitations will bar refiling).

In addition, in considering requests for discretionary extensions of time, some courts haveacknowledged the potential significance of certain other factors that are not relevant here— such as whether the plaintiff is acting pro se, and whether the method of service at issueis unusual or particularly complicated. See, e.g., United States v. World Commodities, 32CIT at _____, 2008 WL 748677 * 4 (noting that plaintiff is not pro se, and “the rules ofservice are no more complex than any other customs case”); Lane v. Lucent Techs., 388 F.Supp. 2d at 597 (noting that plaintiff is pro se); see also McIsaac v. Ford, 193 F. Supp. 2d at384 (holding that, except where plaintiff is pro se and “can show confusion on his part,either because of his unfamiliarity with the rules, or because of his reliance on the mis-leading advice of others,” court will not entertain request for discretionary extension of timefor service of process, even where statute of limitations will bar refiling).


In the instant case, because the statute of limitations expired withthe filing of the Complaint, denying the requested extensions of timewill severely prejudice the Government, because the statute of limi-tations will bar the Government from refiling. But the Governmenthas no one but itself to blame for that fact.

The Government has not argued, and there is nothing in the recordto suggest, that anything prevented the Government from commenc-ing this action well before the eleventh hour and fifty-ninth minute.And, by filing its Complaint at the last possible moment, the Govern-ment — in essence — “assumed the risk” of entirely forfeiting itscause of action if it failed to effect proper service of process within 120days. See, e.g., United States v. Gen’l Int’l Mktg. Group, 14 CIT at 548,742 F. Supp. at 1176 (noting that, especially where statute of limita-tions has expired, plaintiff must exert “such efforts at service as areconsistent with a recognition that 120 days may otherwise mark thedeath of the action”); Tuke v. United States, 76 F.3d at 156 (Easter-brook, J.) (warning that “[a]n attorney who files suit when the statuteof limitations is about to expire must take special care to achievetimely service of process, because a slip-up is fatal”).

Faced with that reality, one reasonably would have expected theGovernment to demonstrate uber-diligence in attempting timely ser-vice of process on the two Defendants. Instead, the Government’sactions here were careless, dilatory, and half-hearted. As the SecondCircuit Court of Appeals emphasized in its seminal opinion in Zapata:

It is obvious that any defendant would be harmed by a generousextension of the service period beyond the limitations period forthe action, especially if the defendant had no actual notice of theexistence of the complaint until the service period had expired;and it is equally obvious that any plaintiff would suffer by hav-ing the complaint dismissed with prejudice on technical grounds— this is no less true where the technical default was the resultof pure neglect on the plaintiff ’s part. But . . . no weighing of theprejudices between the two parties can ignore that the situation isthe result of the plaintiff ’s neglect.

Zapata v. City of New York, 502 F.3d 192, 198 (2d Cir. 2007) (emphasisadded).

Moreover, the Government’s neglect in this case has extended wellbeyond the 120-day period. The Government did not effect service ofprocess on Ronald Rodrigue until February 25, 2009 — more than fivemonths after the 120-day period had ended. And Leroy Rodrigue stillhas not been served, one full year after the end of the 120-day period.It is also telling that, from at least September 15, 2008 (three days


before the end of the 120-day period) until sometime in late January2009, the Government made no additional inquiries and took nofurther action to locate or serve either of the Defendants. In otherwords, for a period of more than four months, the Government didabsolutely nothing in this matter, other than file the pending mo-tions. In addition, even after the Government made the decision inlate January 2009 to engage professional process servers to againattempt personal service on the Defendants, those attempts wereinexplicably delayed until late February 2009. Moreover, the Govern-ment made no further efforts to locate or serve Leroy Rodrigue afterFebruary 27, 2009 — either before the April 6, 2009 hearing in thismatter, or since. Indeed, although the Government served RonaldRodrigue, it never even asked him about the whereabouts of his son.

Under these circumstances, the fact that the statute of limitationswould bar the Government from refiling would not weigh in favor ofa discretionary extension of time in this action. See, e.g., Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d 1277, 1282 (11thCir. 2007) (emphasizing that “the running of the statute of limitations. . . does not require that the district court extend the time for serviceof process”); Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1133(11th Cir. 2005) (stating that “the running of the statute of limitationsdoes not require that a district court extend the time for service ofprocess”); Coleman v. Milwaukee Bd. of School Directors, 290 F.3d932, 934 (7th Cir. 2002) (Posner, J.) (noting that “the cases make clearthat the fact that the balance of hardships favors the plaintiff doesnot require the . . . judge to excuse the plaintiff ’s failure to serve thecomplaint and summons within the 120 days provided by the rule”);36

Petrucelli, 46 F.3d at 1306 (“We emphasize that the running of thestatute of limitations does not require the district court to extend[the] time for service of process.”).

As a second possible factor justifying a discretionary extension oftime (in addition to the first possible factor, the fact that the statuteof limitations would bar the refiling of an action), the Advisory Com-mittee Note cites the defendant’s evasion of service or concealment ofa defect in service. See Fed.R.Civ.P. 4(m), Advisory Committee Note,1993 Amendments (discretionary extension may be justified “if thedefendant is evading service or conceals a defect in attempted ser-vice”). In the instant case, the Government said nothing about eva-

36 Coleman, for example, affirmed the dismissal of plaintiff ’s action even though “thedefendant [did] not show any actual harm to its ability to defend the suit as a consequenceof the delay in service, . . . it is quite likely that the defendant received actual notice of thesuit [during the 120-day period] within a short time after the attempted service, and . . .moreover dismissal without prejudice has the effect of dismissal with prejudice because thestatute of limitations has run.” Coleman, 290 F.3d at 934.


sion or concealment in its motion papers. See Pl.’s Motion for Exten-sion of Time; Pl.’s Motion for Service by Publication. But, at thehearing on the motions, the Government made several vague allu-sions to evasion. When pressed, however, the Government was unableto cite facts to substantiate that intimation, and the Governmentquickly backed down. See Audio Recording of Hearing at2:28:21–2:28:28 (Government notes that it is not representing thatRodrigues are evading service), 4:24:43–4:24:53 (conceding that Gov-ernment has “no legal basis” for claiming evasion); see generally id. at00:26:58–00:27:08, 02:28:02–02:28:28, 03:24:57–03:25:06,04:24:34–04:25:05.

The mere fact that a plaintiff experiences difficulty in effectingservice of process does not mean that the defendant is guilty ofevasion. The record here is devoid of any indication that Leroy Rod-rigue is affirmatively evading service. Moreover, earlier this year theGovernment actually served Ronald Rodrigue at the very addressthat the Florida Department of Highway Safety & Motor Vehicles hadprovided to Customs as Ronald Rodrigue’s most recent address-of-record in early 2008 — an address at which the Government had notpreviously attempted personal service. And, as noted elsewhere,there is no reason to believe that Ronald Rodrigue could not havebeen timely served at that same address in September 2008 (or evenearlier) if the Government had sent a professional process server tothe address (rather than directing the process server to Ronald Rod-rigue’s prior address).

In short, there is simply no evidence whatsoever to suggest thateither of the two Defendants has engaged in any improper action toevade service of process. See, e.g., Bedgood v. Garcia, 2009 WL1664131 * 4 (M.D. Ala. 2009) (emphasizing that “the fact that servinga defendant has proven to be a difficult and onerous task does notequate with a finding that a defendant is avoiding service”); id. at * 3(observing that “[i]t could well be that plaintiffs are looking in thewrong places for [the defendant] or that he has left the area forreasons unrelated to the plaintiffs’ suit. Absent some evidence ofculpability, the court will not presume that [the defendant] is avoid-ing service simply because the plaintiffs have not located him.”)(quotation omitted); id. (noting that return of certified mail as “un-claimed” does not constitute evasion) (quotation omitted); Shuster v.Conley, 107 F.R.D. at 757 (noting that “[t]he fact that the defendantmoved without leaving a forwarding address alone does not evidencean effort to conceal his whereabouts,” and does not constitute evasionof service); United States v. World Commodities, 32 CIT at _____, 2008WL 748677 * 2, 4 (examining assertions of evasion in context of “good


cause” analysis, and holding that “Customs’ vague allegations as to asingle address change and difficulty in serving other pleadings . . .cannot reasonably be viewed as evasion of service”). This factor thuswould not weigh in favor of a discretionary extension of time in thiscase.

The third factor that some courts have considered in evaluating arequest for a discretionary extension of time to effect service of pro-cess is whether the defendant had actual notice of the complaintwithin the 120-day period. In the case at bar, there is no evidence thateither of the two Defendants had actual notice of the Complaintwithin that timeframe. Nor has the Government argued that eitherDefendant was on actual notice. The mere fact that mailings were notreturned to the Government does not establish that those mailingsever reached the Defendants, or — even if they did — that themailings were opened and read by the Defendants. Cf. United Statesv. Thorson, 806 F.2d 1061, 1065 (Fed. Cir. 1986) (observing that“[m]isdelivery, delayed delivery, or nondelivery of mail unfortunatelysometimes happens”). Further, there is no evidence that the onemailing that was returned to the Government had been opened, muchless read by either of the Defendants. Accordingly, this factor toowould weigh against a discretionary extension of time in this case.

The next factor — prejudice to the defendant — is the “flip side” ofthe first factor (discussed above), and is generally accorded greatweight by the courts. While a defendant may not suffer prejudice ifthe time for service is extended where the statute of limitations hasnot yet run, the situation is very different in a case such as this. TheComplaint here was filed on the day that the statute of limitationsexpired; and, 120 days later, the Defendants still had not been servedwith the Complaint. When the statute of limitations has expired andthe defendant has no notice of the pendency of an action, the doctrineof repose counsels against extending the 120-day period for service ofprocess, particularly where (as here) the plaintiff has been (to put itmildly) less than diligent in attempting to effect service within thattimeframe. Cf. Petrucelli, 46 F.3d at 1306 n.7 (emphasizing that rulegoverning extensions of time should not be interpreted so as to “defeatthe purpose and bar of statutes of repose”). As Zapata explained:

It is obvious that any defendant would be harmed by a generousextension of the service period beyond the limitations period forthe action, especially if the defendant had no actual notice of theexistence of the complaint until the service period had expired;and it is equally obvious that any plaintiff would suffer byhaving the complaint dismissed with prejudice on technicalgrounds — this is no less true where the technical default was


the result of pure neglect on the plaintiff ’s part. But . . . noweighing of the prejudices between the two parties can ignorethat the situation is the result of the plaintiff ’s neglect.

Zapata, 502 F.3d at 198 (emphases added) (underscoring “the preju-dice to the defendant that arises from the necessity of defending anaction after both the original service period and the statute of limi-tations have passed before service”). In light of all the facts andcircumstances, this factor weighs heavily against a discretionaryextension of time here.

As to the length of time taken to actually effect service of process,this is most definitely not a case where service was effected within amatter of days, or even weeks, after the end of the 120-day period.Compare, e.g., Zapata, 502 F.3d at 194, 198-99 (affirming dismissalfor failure to effect timely service, where service was made only fourdays after 120-day period ended); United States v. World Commodi-ties, 32 CIT at _____, 2008 WL 748677 * 1, 3 (dismissing action, eventhough service was effected less than one month after 120-day periodended); McIsaac v. Ford, 193 F. Supp. 2d at 382 (dismissing action,even though defendants were served mere two or three days after120-day period ended). The Government did not effect service ofprocess on Ronald Rodrigue until more than five months after the120-day period had ended. And, a full year after the end of the120-day period, Leroy Rodrigue still has not been served. In light ofthese facts, and other compelling evidence of the Government’s pro-crastination and lack of diligence, this factor also would weighheavily against a discretionary extension of time.

Finally, although the Government asserts that it timely sought anextension of the 120-day period for service of process, the Governmentconcedes that it did not seek to file that request until the last daybefore the 120-day period expired, and that it took no action toconfirm that its motion had been docketed until late October or earlyNovember 2008, when it discovered that no motion had been receivedby the court. See n.1, supra; Pl.’s Motion for Extension of Time (datedSept. 17, 2008; not received until filed nunc pro tunc); Audio Record-ing of Hearing at 00:31:54–00:39:29, 03:30:31–03:32:11,03:32:54–03:33:04, 03:35:00–03:35:29. And, even after the Govern-ment made that discovery, the Government did not take immediateaction to cure the problem. See Audio Recording of Hearing at03:32:40–03:32:50, 03:34:18–03:34:40, 03:35:29–03:40:14. Under suchcircumstances, the Government cannot claim much credit for assert-edly being timely in seeking an extension of the 120-day period forservice of process.


In short, the Government here asserted only that it had shown“good cause” justifying an extension of the 120-day period for serviceof process, and failed to argue (either in its brief or at the hearing)that — even absent good cause — an extension of time would bewarranted, as a matter of the court’s discretion. It makes little dif-ference. For all the reasons outlined above, any such request wouldnot have been granted.

B. The Government’s Motion for Service ofProcess by Publication

In addition to its request for two extensions of the 120-day period toeffect service of process, the Government also seeks leave to effectservice of process by publication. See generally Pl.’s Motion for Serviceby Publication.37 Because the Government failed to seek leave toserve by publication until the penultimate day of the 120-day periodfor service of process, the denial of the requested extensions of timeeffectively moots the Government’s motion for service by publication.See section II.A, supra (denying motions for extensions of time). Asdiscussed below, however, even if the extensions of time were granted,the Government nevertheless would not be entitled to serve by pub-lication, both because the sworn statement(s) that the Governmentsubmitted in support of its request are not legally sufficient underFlorida law, and — even more fundamentally — because the Govern-ment failed to conduct the requisite “diligent search and inquiry” toattempt to determine the whereabouts of the Defendants, beforeresorting to service by publication.38

1. The Facial Sufficiency of the Motion for Service of Processby Publication

The Government invokes USCIT Rule 4(d), which permits serviceupon an individual “pursuant to the law of the state in which serviceis effected, for the service of a summons in an action brought in thecourts of general jurisdiction of the state,” by “following state law forserving a summons in an action brought in courts of general juris-diction in the state where service is made.” USCIT R. 4(d)(1).39 TheGovernment notes that the Florida statutes for constructive service of37 The Government has never formally withdrawn its Motion for Service by Publication asto Ronald Rodrigue. As the Government noted in the course of the hearing, however, themotion was effected mooted as to Ronald Rodrigue on February 25, 2008, when he waspersonally served. See Audio Recording of Hearing at 04:00:07–04:00:16.38 Although the Government reportedly effected personal service on Ronald Rodrigue in lateFebruary of this year, the Government has not formally withdrawn its Motion for Serviceby Publication as to him.39 USCIT Rule 4(d)(1) parallels Rule 4(e)(1) of the Federal Rules of Civil Procedure.


process provide for service by publication “[t]o enforce any . . . debtowing by any party on whom process can be served within [the] state.”See Fla. Stat. §§ 49.011, 49.021 (2008).

The Government further acknowledges that Florida law requires —as a condition precedent to service by publication — that a plaintifffile a verified or sworn statement attesting, inter alia, “that theresidence of the person [to be served] is[] either: (a) [u]nknown to theaffiant; or (b) [i]n some state or country other than [Florida] . . . ; or(c) [i]n the state, but that he or she has been absent from the state formore than 60 days . . . , or conceals himself or herself so that processcannot be personally served.” See Pl.’s Motion for Service by Publica-tion at 3; Fla. Stat. § 49.041 (2008). However, none of the papers filedin support of the Government’s Motion for Service by Publication –the Carpio Declaration, the Affidavit of Diligent Search and Inquiry(executed by Ross Frew), or the Affidavit of Non-Service (executed byBrian S. Johns) — fulfills the requirement of Florida law quotedimmediately above. Compare Fla. Stat. § 49.041(3) with Carpio Dec-laration; Affidavit of Diligent Search and Inquiry; and Affidavit ofNon-Service. The Government’s papers are thus legally insufficienton their face.

As the Florida courts have consistently held, “because the lack ofpersonal service implicates due process concerns, a plaintiff muststrictly comply with the statutory requirements” for service of processby publication. Redfield Investments, A.V.V. v. Village of Pinecrest,990 So. 2d 1135, 1138–40 (Fla. Dist. Ct. App. 2008) (holding affidavitlegally insufficient on its face); see also, e.g., Levenson v. McCarty, 877So. 2d 818, 820 (Fla. Dist. Ct. App. 2004) (stating that “[c]onstructiveservice statutes are strictly construed against a plaintiff who seeks toobtain service of process under them”); Godsell v. United GuarantyResidential Ins., 923 So. 2d 1209, 1213, 1215 (Fla. Dist. Ct. App. 2006)(same; also holding affidavit legally insufficient on its face); Gans v.Heathgate-Sunflower Homeowners Ass’n, Inc., 593 So. 2d 549, 552–53(Fla. Dist. Ct. App. 1992) (same; also holding affidavit legally insuf-ficient on its face). The Florida courts have not hesitated to set asidejudgments obtained through service by publication where the sup-porting affidavit did not strictly comply with the requirements of thestatute.

In Godsell, for example, the court found that an affidavit had “anumber of facial defects,” where the affidavit failed to state “whetherthe person [to be served] is over or under eighteen, [and] whether theaddress is unknown to the affiant,” and where the affidavit “omit[ted]any reference to the important fact of defendant’s Canadian resi-


dence.” See Godsell, 923 So. 2d at 1215. The court therefore concludedthat, “although the ‘diligent search and inquiry’ claim was containedin the affidavit, [the affidavit] was otherwise not in compliance withthe statute.” Id.

Similarly, in Redfield Investments, the court found the affidavitlegally insufficient on its face because many of the averments statedthat an inquiry of a source had not “yet revealed an accurate orcurrent forwarding address for the Defendant.” See Redfield Invest-ments, 990 So. 2d at 1139–40. The court held that, “[b]ecause con-structive service by publication may not be utilized where personalservice can be had, the use of such qualifying terminology, at aminimum, leaves open to question whether . . . [the averments in theaffidavit] are sufficient to constitute strict compliance with the ser-vice by publication statute.” Id. at 1140 (internal citation omitted).

To the same effect is Gans, 593 So. 2d at 552–53. In Gans, the courtunderscored that “[i]t is a fundamental principle of law that a plain-tiff must strictly comply with a service of process by publicationstatute,” and stated that “[a]n order of publication based on a swornstatement which does not comply with the statute fails to conferjurisdiction.” Id. at 552. The Gans court concluded that the affidavitin that case was defective, because it did not comply with the part of§ 49.041 “which requires that the sworn statement set forth theresidence of the defendant as particularly as is known to the affiant.”Id. at 552–53.

In the case at bar, the papers filed by the Government describe themeasures taken to attempt to effect service of process on the Defen-dants as a “diligent search and inquiry,” and state that Ronald andLeroy Rodrigue are both over the age of 18. See Carpio Declaration;Affidavit of Diligent Search and Inquiry; Affidavit of Non-Service.The Government’s papers therefore satisfy the first two parts ofsection 49.041 of the Florida statutes. See Fla. Stat. § 49.041(1) & (2).However, the Government has failed to satisfy the requirements ofsection 49.041(3), which mandate that service by publication be sup-ported by a sworn statement indicating “that the residence of [theperson to be served] is, either:”

(a) Unknown to the affiant; or(b) In some state or country other than [Florida], stating said

residence if known; or(c) In the state [of Florida], but that he or she has been absent

from the state for more than 60 days next preceding the makingof the sworn statement, or conceals himself or herself so thatprocess cannot be personally served, and that affiant believes


that there is no person in the state upon whom service ofprocess would bind said absent or concealed defendant.

Fla. Stat. § 49.041(3). The absence of such a statement would befatal to the Government’s Motion for Service by Publication, if thatmotion were not already moot. See Godsell, 923 So. 2d at 1215(holding service by publication void where, inter alia, affidavitfailed to state “whether the address [of the person to be served] isunknown to the affiant”); see also, e.g., Redfield Investments, 990So. 2d at 1139–40; Gans, 593 So. 2d at 552–53; cf. Demars v. Villageof Sandalwood Lakes Homeowners Ass’n, Inc., 625 So. 2d 1219,1220–23 (Fla. Dist. Ct. App. 1993) (where “bare bones” affidavitstated, inter alia, that “a diligent search and inquiry” had beenmade and that “Defendant’s place of residence is unknown,” hold-ing that sworn statement in support of service by publication needonly “parrot” or “track” the language of the statute; unnecessaryfor affiant to include specific facts demonstrating that a diligentsearch was undertaken).40

2. The Substantive Merits of the Motion for Service of Processby Publication

Even assuming that the Government’s Motion for Service by Pub-lication were not moot, and further assuming that the Government’spapers in support of that motion were not legally insufficient on theirface (as set forth in section II.B.1 above), the Government’s Motion forService by Publication nevertheless would have to be denied, becausethe Government failed to undertake the requisite “diligent search andinquiry” to attempt to locate and personally serve the Defendants,before resorting to service of process by publication.41

40 Although the Demars court held that a plaintiff is not required to include in its affidavitthe specific facts of its “diligent search and inquiry,” the court also noted that “the betterpractice is to file an affidavit . . . which contains all the details of the search,” to “simplif[y]review of constructive service for the court.” See Demars, 625 So. 2d at 1223–24 & n3.41 The Supreme Court has emphasized that “[n]otice by publication is a poor and sometimesa hopeless substitute for actual service of notice,” conceding that “[i]ts justification isdifficult at best.” City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296 (1953)(quoted in Schroeder v. City of New York, 371 U.S. 208, 213 (1962)). One court has poeticallyobserved that “[t]he process of constructive service through publication is a concession ofthe law to the hard circumstances of necessity.” Empire of America, FFA v. Brown, 1986 WL3034 * 1 (N.D. Ill. 1986) (quoting Graham v. O’Connor, 350 Ill. 36, 40 (1932)). “The lawmakes this concession grudgingly.” Id.

Service by publication is thus strictly a measure of “last resort.” See, e.g., Wright & Miller,Federal Practice and Procedure § 1115; MATSCO v. Brighton Family Dental, P.C., 597 F.Supp. 2d 158, 163 (D. Me. 2009) (quotation omitted); Duarte v. Freeland, 2008 WL 683427* 1 (N.D. Cal. 2008) (quotation omitted); Thrivent Financial for Lutherans v. Savercool,2008 WL 5412095 * 3 (M.D. Pa. 2008). Indeed, one leading treatise states flatly that


“[P]ersonal service of process on a defendant is the usual andpreferred method of serving a defendant with notice of an action.”Redfield Investments, 990 So. 2d at 1138. Thus, service by publicationis permitted only in exceptional cases, “when the plaintiff cannoteffect personal service. . . . The determining factor is whether per-sonal service ‘cannot be had.’” Gans, 593 So. 2d at 551 (citationomitted); see also Godsell, 923 So. 2d at 1213; Dor Cha, Inc. v. Holl-ingsworth, 876 So. 2d 678, 680 (Fla. Dist. Ct. App. 2004) (stating that“[a] party seeking to utilize service by publication must be able toshow that personal service could not be made”); McDaniel v. McElvy,108 So. 820, 830–31 (Fla. 1926) (underscoring that “resort to con-structive service by publication is predicated upon necessity, and, ifpersonal service could be effected by the exercise of reasonable dili-gence, substituted service is unauthorized”).42

As such, “court-ordered service by publication is appropriate onlyafter the plaintiff has demonstrated . . . that all of the statutorymodes of service have been diligently exhausted without successfulservice and that all reasonable efforts to locate the defendant havefailed.” Prudential Ins. Co. of Am. v. Holladay, 2008 WL 1925293 * 3(D.N.J. 2008).43 Accordingly, even if the Government’s papers here

“[service by publication] ordinarily is not a proper means of service in actions based on inpersonam jurisdiction.” Wright & Miller, Federal Practice and Procedure § 1074. It is, to saythe very least, “disfavored.” See Booth v. Martinez, 2007 WL 2086659 * 1 (W.D. Tex. 2007);Prudential Ins. Co. of Am. v. Holladay, 2008 WL 1925293 * 3 (D.N.J. 2008). Other courtshave emphasized that it is “an extraordinary measure,” see Furin v. Reese Teleservices, Inc.,2008 WL 5068955 * 2 (W.D. Pa. 2008) (quotation omitted), and “the exception, not the rule,”see Thrivent Financial, 2008 WL 5412095 * 3 (quotation omitted).42 “Where personal service of process cannot be had, then service of process by publicationmay be had upon the filing of an affidavit on plaintiff ’s behalf stating the residence of theperson to be served as particularly as is known after ‘diligent search and inquiry.’” Gmaz v.King, 238 So. 2d 511, 514 (Fla. Dist. Ct. App. 1970) (quotation omitted).

In the instant case, the Government’s sworn submissions are conspicuously short on thespecific facts and details of the Government’s attempts to locate and effect service of processon the two Defendants. See Carpio Declaration; Affidavit of Diligent Search and Inquiry;Affidavit of Non-Service. Even if counsel’s numerous unsworn and undocumented factualrepresentations made orally in the course of the hearing in this matter were considered,however, the Government still would not meet its burden.43 Florida law on service of process by publication generally parallels that of other stateswhich authorize such service only in those cases where a plaintiff can demonstrate that,despite its diligent efforts, it cannot locate and/or serve a defendant. The law of such otherjurisdictions is thus instructive here. See generally Wright & Miller, Federal Practice andProcedure § 1074 n.21; see also, e.g., MATSCO, 597 F. Supp. 2d at 160 (quoting Maine law,which authorizes service by publication only where plaintiff demonstrates inability to servedefendant notwithstanding “due diligence”); Zaritsky v. Crawford, 2008 WL 2705488 * 1 (D.Nev. 2008) (quoting Nevada rule permitting service by publication where defendant “[c]an-not, after due diligence, be found”); Prudential Ins. Co., 2008 WL 1925293 * 2 & n.1 (notingthat Alabama law and New Jersey law on service by publication are “practically identical,”and require plaintiff to demonstrate inability to personally serve defendant despite “due


had been determined to be sufficient on their face (which they werenot), the court also would be obligated to determine whether theGovernment in fact actually conducted an adequate search. See Red-field Investments, 990 So. 2d at 1138; Shepheard v. Deutsche BankTrust Co. Americas, 922 So. 2d 340, 343 (Fla. Dist. Ct. App. 2006);Southeast and Associates, Inc. v. Fox Run Homeowners Ass’n, 704 So.2d 694, 696 (Fla. Dist. Ct. App. 1997); Demars, 625 So. 2d at 1224.44

As the plaintiff and the party invoking the court’s jurisdiction, theGovernment bears the burden of establishing the legal sufficiency ofits search before recourse to service of process by publication may behad. See Shepheard, 922 So. 2d at 343; Demars, 625 So. 2d at 1224.45

Specifically, before it may resort to service by publication, the Gov-ernment must demonstrate that it “reasonably employed the knowl-edge at [its] command, made diligent inquiry and exerted an honestand conscientious effort appropriate to the circumstances to acquirethe information necessary to effect personal service on the defen-dant,” but — in the end — was unable to do so. Wolfe v. Stevens, 965So. 2d 1257, 1259 (Fla. Dist. Ct. App. 2007) (quoting McDaniel v.McElvy, 108 So. at 831).46

In other words, the Government must demonstrate that, under thecircumstances of the case, personal service of process is essentiallyimpossible. See, e.g., Godsell, 923 So.2d at 1213 (emphasizing that“[s]ervice by publication may be used only when alternative service

diligence”); Duarte, 2008 WL 683427 * 1 (quoting California statute providing for service bypublication where plaintiff establishes that defendant “cannot with reasonable diligence beserved” personally ); Booth v. Martinez, 2007 WL 2086659 * 1 (stating that, under Texas law,service by publication is permitted only after plaintiff has exercised “due diligence,” but has“been unable to locate the whereabouts of [the] defendant”); Empire of America, 1986 WL3034 * 1 (quoting Illinois statute authorizing service by publication only where, inter alia,“the defendant’s place of residence cannot by diligent inquiry be ascertained”).44 See also Mayo v. Mayo, 344 So. 2d 933, 934 n.1 (Fla. Dist. Ct. App. 1977) (criticizing trialcourt for making “no serious attempt” to ascertain whether the plaintiff in that case had“[made] diligent search and inquiry required to validly obtain constructive service”).45 “[B]ecause the lack of personal service implicates due process concerns, a plaintiff muststrictly comply with the statutory requirements” governing service of process by publica-tion. Redfield Investments, 990 So. 2d at 1138; accord, Godsell, 923 So. 2d at 1213; Shep-heard, 922 So. 2d at 343; Gans, 593 So. 2d at 552. The burden is on the plaintiff “to showstrict compliance.” Robinson v. Cornelius, 377 So. 2d 776, 778 (Fla. Dist. Ct. App. 1979).Moreover, “[c]onstructive service statutes are strictly construed against a plaintiff whoseeks to obtain service of process under them.” Levenson v. McCarty, 877 So. 2d at 820;accord, Shepheard, 922 So. 2d at 343; Mayo, 344 So. 2d at 935. And it is the plaintiff whomust “present[] facts which clearly justify [the] applicability” of such a statute. Robinson v.Cornelius, 377 So. 2d at 778.46 See also Godsell, 923 So. 2d at 1215; Shepheard, 922 So. 2d at 343–44 (quoting Demars,625 So. 2d at 1224); Southeast and Associates, Inc., 704 So. 2d at 696; Grammer v.Grammer, 80 So. 2d 457, 460–61 (Fla. 1955).


[i.e., service by any other means] cannot be effected”); Levenson v.McCarty, 877 So.2d at 820 (explaining that Florida law “is consistentwith the common law in permitting service by publication only wherepersonal service cannot be made”); Dor Cha, 876 So.2d at 680 (statingthat “[a] party seeking to utilize service by publication must be ableto show that personal service could not be made”).47

As one court recently put it: “In determining whether a plaintiff hasexercised ‘reasonable diligence’ [so as to justify resort to service bypublication,] . . . a court must . . . see whether the plaintiff ‘took thosesteps a reasonable person who truly desired to give notice would havetaken under the circumstances.’” Duarte v. Freeland, 2008 WL683427 * 1 (N.D. Cal. 2008) (quotation omitted); see also RedfieldInvestments, 990 So.2d at 1139 (“‘Reasonable diligence [in a search tolocate defendant for personal service, as a prerequisite for makingservice by publication] . . . is an honest effort, and one appropriate tothe circumstances, to ascertain whether actual notice [i.e., personalservice] may be given, and, if so, to give it.’”) (quoting Levenson v.McCarty, 877 So. 2d at 820); McDaniel v. McElvy, 108 So. at 832.48

The Government’s efforts here fail this stringent test.49

47 The Supreme Court has emphasized that, in giving notice, the means that a partyemploys “must be such as one desirous of actually informing the absentee might reasonablyadopt to accomplish it.” See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,314 (1950) (quoted in Jones v. Flowers, 547 U.S. 220, 229 (2006)). To paraphrase Mullane,so too the search and inquiry required of a plaintiff in circumstances such as these “mustbe such as one desirous of actually [locating] the absentee might reasonably adopt toaccomplish it.”48 As the court observed in Mayo: “A legion of Florida cases are instructive on the proposi-tion that one who relies on service by publication should demonstrate that he has madediligent inquiry, and executed an honest and conscientious effort appropriate to the cir-cumstances to acquire the information necessary to enable him to effect personal service onthe defendant.” Mayo, 344 So.2d at 934 n.1).49 In the course of the hearing, the Government noted that the Government recently wasgranted an extension of time and leave to serve by publication in United States v. PretyFashion & Apparel, Inc. See United States v. Prety Fashion & Apparel, Inc., No. 08–00167(Ct. Int’l Trade filed May 9, 2008). The facts of that case are readily distinguishable from thefacts of the case at bar, however. In that case, by the time the Government sought anextension of time and leave to serve the corporate defendant by publication, the Govern-ment had already effected timely personal service upon the individual defendant, who is theformer president and chief executive of the corporate defendant. See Plaintiff ’s Motion forLeave to Serve Defendant by Constructive Service and Motion for an Extension of Time Outof Time, United States v. Prety Fashion & Apparel, Inc., No. 08–00167 (Ct. Int’l Trade filedNov. 26, 2008) at 2. Thus, the corporate defendant was on timely, actual notice of the action,and the court thus concluded that an extension of time to effect proper service on thecorporation was warranted. It is also significant that the constructive service at issue inthat case was service upon the California Secretary of State. Id. at 2–3. That case thereforedoes not stand as an endorsement of service by publication — much less an example ofservice by publication upon an individual defendant.


Little more than a recitation of the bare facts is needed to establishthe Government’s lack of diligence in seeking to effect service ofprocess in this case. As detailed in section I above, in late January2008, the Government obtained information on the most recentaddresses-of-record for the two Defendants from the Florida Depart-ment of Highway Safety & Motor Vehicles — an address on 156thPlace for Leroy Rodrigue, and an address on Bamboo Palm Way forRonald Rodrigue. At the same time, the Government also receivedinformation on all prior addresses-of-record for both men.

On May 21, 2008, the Government filed its Complaint, and sentcopies of the Complaint and the waiver of service form to LeroyRodrigue at the address on 156th Place, his most recent address-of-record. Inexplicably, however, the Government mailed the documentsto Ronald Rodrigue at an address on Buffalo Way — one of RonaldRodrigue’s prior addresses. The Government apparently compoundedits error by using the wrong zip code for the Buffalo Way address.Neither of the Defendants executed and returned a waiver of service.

The Government took no further action to locate or serve the De-fendants for the next 42 days. On July 2, 2008, the Government againmailed copies of the summons, Complaint, and waiver of service formto the two men — to Leroy Rodrigue at the 156th Place address, andto Ronald Rodrigue at the address on Bamboo Palm Way. However,the Government took no further action to locate or serve the twoDefendants in the 57 days that followed. Again, neither of the Defen-dants executed and returned a waiver of service.

On August 29, 2008, with only 21 days remaining until the end ofthe 120-day period for service of process, the Government finallyengaged a professional process service firm. However, rather thanattempting service at the most recent addresses-of-record that theGovernment had obtained from the Florida Department of HighwaySafety & Motor Vehicles (or even attempting service at multipleaddresses), the Government instead instructed the process servers toattempt service on Ronald Rodrigue at one of his prior addresses (theaddress on Buffalo Way), and to attempt service on Leroy Rodrigue atan address on 85th Terrace (a putative former address-of-record, as towhich the Government purportedly had obtained a “tip”). Those at-tempts were not successful. Nevertheless, the Government took nofurther action to locate or serve the Defendants before the 120-dayperiod for service of process ended on September 18, 2008. Indeed, the


Government took no further action to locate or serve the Defendantsin the four-plus months that followed.50

Eventually, in late January 2009, the Government decided to en-gage professional process servers to attempt to effect service on thetwo Defendants at the most recent addresses-of-record as provided bythe Florida Department of Highway Safety & Motor Vehicles the yearbefore. For reasons unexplained, service was not actually attemptedtill late February 2009. An attempt was made to serve Leroy Rodrigueat the address on 156th Place on February 27, 2009. But that attemptwas not successful, and the record is silent as to whether any addi-tional attempts were made. Ronald Rodrigue was successfully servedat the address on Bamboo Palm Way — an address that the Govern-ment had had in its possession for at least one full year. However, theGovernment did not ask Ronald Rodrigue about the whereabouts ofhis son, Leroy Rodrigue. And, to date, more than a year after the endof the 120-day period for service of process, Leroy Rodrigue still hasnot been served.

The Government’s lack of diligence was evident from the start,beginning with the Government’s unexplained (apparently careless)failure to use the most recent address-of-record for its May 21, 2008mailing to Ronald Rodrigue, which was exacerbated by the Govern-ment’s use of an incorrect zip code on that mailing. Such errors arenot indicative of the “diligent search and inquiry” required for re-course to service of process by publication. See, e.g., Dor Cha, 876 So.2d at 680 (finding that plaintiff failed to conduct “diligent search andinquiry” where, inter alia, “[t]he plaintiff was not careful in hissearch, crucially misspelling [defendant’s] name in the inquiry thathe made of the driver’s license department”).

Even more damning is the Government’s delay in engaging profes-sional process servers — an error compounded by the Government’sfailure to send the process servers to the Defendants’ most recentaddresses-of-record as provided by the Florida Department of High-way Safety & Motor Vehicles (or, alternatively, to send the processservers to multiple addresses). As noted above, Ronald Rodrigue wassuccessfully served at that address-of-record (on Bamboo Palm Way)in late February 2009, and presumably could have been served atthat address well before the 120-day period for service of processended on September 18, 2008, if only the Government had exercised

50There is a strong argument that the measure of the Government’s diligence should beconfined to the 120-day period for service of process which ended on September 18, 2008. Asoutlined here, however, the Government’s dilatory behavior continued even after that date.Accordingly, even if all of the Government’s efforts to locate and serve the Defendants wereconsidered, the Government still could not show that it made the requisite “diligent searchand inquiry.”


diligence. Further, to this very day the record is devoid of any indi-cation as to who in fact actually resides at the address on 156th Place(the most recent address-of-record that the Florida Department ofHighway Safety & Motor Vehicles provided for Leroy Rodrigue). Thefact that, even now, the Government still has not established whetherLeroy Rodrigue — or someone else — lives at that address is furthertestament to the Government’s lack of diligence in this matter.

Similarly troublesome is the absence of any evidence to indicatethat the Government made repeated attempts to serve Leroy Rod-rigue at the 156th Place address, beginning in late February 2009.Diligent plaintiffs recognize that it is often necessary to make mul-tiple attempts, at all hours of the day and night, on different days ofthe week, over an extended period of time, in order to effect personalservice on a defendant. See, e.g., Southeast and Associates, Inc., 704So. 2d at 695 (finding that plaintiff made “diligent search and in-quiry” where, inter alia, professional process server made repeatedattempts to serve defendants “over a thirty-day period, at differenttimes of day”); see also Audio Recording of Hearing at02:28:42–02:29:01 (Government conceding that, in light of limitedperiod during which personal service was attempted here, processservers would not have found Rodrigues at their homes if they were,for example, on vacation).

The Government’s failure to seek updated information on the ad-dresses of the two Defendants is also telling. The report from theFlorida Department of Highway Safety & Motor Vehicles providingthe most recent and prior addresses-of-record for the Rodrigues wasdated January 22, 2008. That information was thus four months oldby the time the Government sought to use it for the first time on May21, 2008. Moreover, there is no indication in the record that theGovernment ever requested updated information on the two Defen-dants. Diligent plaintiffs are sensitive to the problem of “stale” infor-mation. See, e.g., Gans, 593 So.2d at 551–52 (finding that plaintifffailed to conduct “diligent search and inquiry” where, inter alia,process server concluded that residence was unoccupied, even thoughFlorida Department of Motor Vehicles printout obtained by plaintiffindicated that defendant had re-registered her car at that sameaddress a mere three weeks earlier; noting that, “[a]lthough [defen-dant] might have moved during the three week period, it was un-likely”); Duarte, 2008 WL 683427 * 3 (indicating that, in light of thepassage of time, “the Court believes that a further and more currentsearch for [defendant] is appropriate before resorting to the lastresort of service by publication”).


The Government’s inaction for protracted periods of time is addi-tional compelling evidence of its inattention and lack of diligence ineffecting service of process. Quite apart from the periods of inactionthat preceded the end of the 120-day period for service of process onSeptember 18, 2008, the Government’s lack of activity between thatdate and late February 2009, and between late February 2009 andthe April 6, 2009 hearing, reflects an indifference that is fundamen-tally inconsistent with the Government’s obligation to conduct a “dili-gent search and inquiry” to locate and effect service of process on theDefendants personally.51

Yet another grave and glaring flaw in the Government’s approach toservice of process in this case was its reliance on a single source ofinformation. Particularly if the Government had reservations aboutthe accuracy of the information provided by the Florida Departmentof Highway Safety & Motor Vehicles (as it indicated in the course ofthe April 6, 2009 hearing), it was incumbent upon the Government toconsult other sources in order to locate and serve the Defendants. See,e.g., Audio Recording of Hearing at 1:07:59–1:08:15, 3:57:54–3:57:59,04:24:54–04:24:56 (Government expressing uncertainty as to validityof addresses).

A casual survey of several dozen cases discloses a very wide rangeof means that other plaintiffs have employed to locate and/or contactmissing defendants in order to effect service of process — includingretaining a private investigator;52 “background checks”;53 “skiptraces”;54 reviewing criminal history records;55 running creditchecks;56 conferring with the defendant’s current or former legal

51 This is to say nothing of the Government’s apparent inactivity in the nearly six monthssince the April 6, 2009 hearing.52 See, e.g., Dolezal v. Fritch, 2008 WL 5215335 * 2 (D. Ariz. 2008); Posey v. Searcy,2008 WL5382692 * 2–3 (E.D. Pa. 2008); Thrivent Financial, 2008 WL 5412095 * 2; Booth v. Martinez,2007 WL 2086659 * 1; Levin v. Richter, 1991 WL 13991 * 1 (E.D. Pa. 1991); see also BPProds. North America, Inc. v. Dagra, 236 F.R.D. 270, 272–73 (E.D. Va. 2006) (foreigndefendant); Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1013 (9th Cir. 2002)(foreign defendant).53 See, e.g., Prudential Ins. Co., 2008 WL 1925293 * 1, 3.54 See, e.g., Godsell, 923 So. 2d at 1210–11, 1215; Southeast and Associates, Inc., 704 So. 2dat 695–96.55 See, e.g., Prudential Ins. Co., 2008 WL 1925293 * 3.56 See, e.g., Prudential Ins. Co., 2008 WL 1925293 * 3; US Bank, NA v. Matthews, 2005 WL2709295 * 1 (N.D. Ill. 2005).


counsel;57 contacting co-defendants;58 consulting the defendant’srelatives, friends, and neighbors;59 talking to tenants or parties inpossession of the property at the defendant’s putative address(es);60

contacting the defendant’s employer and former employers,61 as wellas co-workers and former co-workers (including employees);62 visitingthe defendant’s business premises;63searching Social Security Ad-ministration databases;64 reviewing Internal Revenue Servicerecords;65 reviewing wage reports;66 reviewing utility company

57 See, e.g., Redfield Investments, 990 So. 2d at 1138; Godsell, 923 So. 2d at 1213; Levensonv. McCarty, 877 So. 2d at 819–20; Dor Cha, 876 So. 2d at 680; Demars, 625 So. 2d at 1221;Sananikone v. United States, 2009 WL 796544 * 1, 3–4 (E.D. Cal. 2009) (citing Donel, Inc.v. Badalian, 150 Cal. Rptr. 855 (Cal. Ct. App. 1978); Kott v. Superior Court, 53 Cal. Rptr. 2d215, 221 (Cal. Ct. App.1996); Vorburg v. Vorburg, 117 P.2d 875 (Cal. 1941)); Dolezal, 2008WL 5215335 * 2; United States v. Tobins, 483 F. Supp. 2d at 70, 78; Empire of America, 1986WL 3034 * 1 (citing First Fed. Sav. & Loan Ass’n v. Brown, 393 N.E.2d 574 (Ill. App. Ct.1979)).58 See, e.g., Robinson v. Cornelius, 377 So.2d at 777; Sananikone, 2009 WL 796544 * 3–4(citing Kott v. Superior Court, 53 Cal. Rptr. 2d at 221); Prudential Ins. Co., 2008 WL1925293 * 1.59 See, e.g., Godsell, 923 So. 2d at 1211–13; Floyd v. Federal Nat’l Mortgage Ass’n, 704 So.2d 1110, 1112 (Fla. Dist. Ct. App. 5th Dist. 1998); Southeast and Associates, Inc., 704 So. 2dat 695–96; Gans, 593 So. 2d at 551; Mayo, 344 So. 2d at 935–36; Sananikone, 2009 WL796544 * 4; Thrivent Financial, 2008 WL 5412095 * 2–3; Duarte, 2008 WL 683427 * 2, 4(quoted with approval in MATSCO, 597 F. Supp. 2d at 162-63); Posey v. Searcy, 2008 WL5382692 * 3; Prudential Ins. Co., 2008 WL 1925293 * 3–4; Dolezal, 2008 WL 5215335 * 2–3;United States v. Tobins, 483 F. Supp. 2d at 71–72, 78; US Bank, NA, 2005 WL 2709295 * 1;Levin v. Richter, 1991 WL 13991 * 1; Penn v. Raynor, 1989 WL 126282 * 2–3 (E.D. Pa. 1989);Empire of America, 1986 WL 3034 * 1 (citing Bell Federal Sav. & Loan Ass’n v. Horton, 376N.E.2d 1029 (Ill. App. Ct. 1978)); Cooper v. Commonwealth Title of Arizona, 489 P.2d 1262,1266 (Ariz. Ct. App. 1971) (quoted with approval in MATSCO, 597 F. Supp. 2d at 163).60 See, e.g., Floyd, 704 So. 2d at 1112; Demars, 625 So. 2d at 1221; Sananikone, 2009 WL796544 * 1; Prudential Ins. Co., 2008 WL 1925293 * 3. and former employers,61 See, e.g., Sananikone, 2009 WL 796544 * 1; Duarte, 2008 WL 683427 * 2 (quoted withapproval in MATSCO, 597 F. Supp. 2d at 162–63); Posey v. Searcy, 2008 WL 5382692 * 3;Booth v. Martinez, 2007 WL 2086659 * 1; Levin v. Richter, 1991 WL 13991 * 1; Penn v.Raynor, 1989 WL 126282 * 2–3; Empire of America, 1986 WL 3034 * 1 (citing First Fed. Sav.& Loan, 393 N.E.2d 574).62 See, e.g., Duarte, 2008 WL 683427 * 2 (quoted with approval in MATSCO, 597 F. Supp.2d at 162–63).63 See, e.g., Southeast and Associates, Inc., 704 So. 2d at 695-96 (visit); Posey v. Searcy, 2008WL 5382692 * 2–3 (mail); Penn v. Raynor, 1989 WL 126282 * 3.64 See, e.g., Godsell, 923 So. 2d at 1210–11, 1215; Floyd, 704 So. 2d at 1112; Southeast andAssociates, Inc., 704 So. 2d at 695; Booth v. Martinez, 2007 WL 2086659 * 1; US Bank, NA,2005 WL 2709295 * 1.65 See, e.g., Sananikone, 2009 WL 796544 * 1.66 See, e.g., United States v. Tobins, 483 F. Supp. 2d at 72, 78.


records in general;67 searching water and sewer records;68 searchingelectric utility records;69 reviewing telephone company records;70

searching telephone directories;71 contacting directory assistance;72

reviewing city directories;73 contacting the U.S. Postal Service;74 in-quiring about a “forwarding address”;75 requesting a “postaltracer”;76 “check[ing] for an address listing”;77 searching Departmentof Motor Vehicles records (including vehicle title registrations, as wellas drivers licenses),78 and driving records;79 reviewing voter registra-

67 See, e.g., MATSCO, 597 F. Supp. 2d at 162; Cooper, 489 P.2d at 1266 (quoted withapproval in MATSCO, 597 F. Supp. 2d at 163).68 See, e.g., Redfield Investments, 990 So. 2d at 1138.69 See, e.g., Redfield Investments, 990 So. 2d at 1138; Demars, 625 So. 2d at 1221.70 See, e.g., Redfield Investments, 990 So. 2d at 1138; Penn v. Raynor, 1989 WL 126282 * 1,3.71 See, e.g., Hobe Sound Indus. Park, Inc. v. First Union Nat’l Bank of Florida, 594 So. 2d334 (Fla. Dist. Ct. App. 1992); Robinson v. Cornelius, 377 So.2d at 778; Sananikone, 2009WL 796544 * 3 (citing Donel, 87 Cal. App. 3d 327; Vorburg, 117 P.2d at 876); Prudential Ins.Co., 2008 WL 1925293 * 3; Duarte, 2008 WL 683427 * 2–4 (citing Watts v. Crawford, 896P.2d 807 (Cal. 1995)) (quoted with approval in MATSCO, 597 F. Supp. 2d at 163); Posey v.Searcy, 2008 WL 5382692 * 3; US Bank, NA, 2005 WL 2709295 * 1; Beasley v. United States,162 F.R.D. 700, 701–02 (M.D. Ala. 1995); Levin v. Richter, 1991 WL 13991 * 1; Penn v.Raynor, 1989 WL 126282 * 1–3; Cooper, 489 P.2d at 1266 (quoted with approval inMATSCO, 597 F. Supp. 2d at 163).72 See, e.g., Redfield Investments, 990 So. 2d at 1137; Godsell, 923 So. 2d at 1211; Gans, 593So.2d at 552; Bedgood, 2009 WL 1664131 * 1.73 See, e.g., Sananikone, 2009 WL 796544 * 3 (citing Donel, 150 Cal. Rptr. 855; Vorburg, 117P.2d at 876); Duarte, 2008 WL 683427 * 2–4 (citing Watts v. Crawford, 896 P.2d 807) (quotedwith approval in MATSCO, 597 F. Supp. 2d at 163); Beasley, 162 F.R.D. at 701–02; Cooper,489 P.2d at 1266 (quoted with approval in MATSCO, 597 F. Supp. 2d at 163).74 See, e.g., Redfield Investments, 990 So. 2d at 1137 (FOIA request); Gaeth v. Deacon, 964A.2d 621, 623 (Me. 2009) (quoted with approval in MATSCO, 597 F. Supp. 2d at 160–62);Posey v. Searcy, 2008 WL 5382692 * 1, 3 (including FOIA request); Prudential Ins. Co., 2008WL 1925293 * 3 n.4 (citation omitted); US Bank, NA, 2005 WL 2709295 * 1; Penn v. Raynor,1989 WL 126282 * 2 (FOIA request).75 See, e.g., Godsell, 923 So. 2d at 1210–11, 1215; MATSCO, 597 F. Supp. 2d at 162–63;Prudential Ins. Co., 2008 WL 1925293 * 1, 3; Levin v. Richter, 1991 WL 13991 * 1; Cooper,489 P.2d at 1266 (quoted with approval in MATSCO, 597 F. Supp. 2d at 163).76 See, e.g., United States v. Tobins, 483 F. Supp. 2d at 70, 72–74, 78.77 See, e.g., Penn v. Raynor, 1989 WL 126282 * 1, 3.78 See, e.g., Godsell, 923 So. 2d at 1210–11; Dor Cha, 876 So. 2d at 679–80; Southeast andAssociates, Inc., 704 So. 2d at 695; Gans, 593 So. 2d at 550; Robinson v. Cornelius, 377 So.2d at 777; Bedgood, 2009 WL 1664131 * 1; Thrivent Financial, 2008 WL 5412095 * 2–3;Posey v. Searcy, 2008 WL 5382692 * 3; United States v. Tobins, 483 F. Supp. 2d at 72, 78; USBank, NA, 2005 WL 2709295 * 1; Levin v. Richter, 1991 WL 13991 * 1; Penn v. Raynor, 1989WL 126282 * 2–3.79 See, e.g., Prudential Ins. Co., 2008 WL 1925293 * 3.


tion rolls;80 searching Vital Statistics records (including records ofbirths, deaths, marriages, and divorces);81 contacting the office oflocal district attorney/prosecutor;82 reviewing local court records (in-cluding judgments and bankruptcy records);83 searching probaterecords;84 reviewing the records of business licensing or professionallicensing agencies;85 searching corporate registrations;86 reviewingthe records of educational institutions that the defendant attended;87

contacting churches;88 consulting embassies and consulates;89 re-viewing the records of condominium owners’ associations;90 contact-ing the defendant’s insurance agent;91 reviewing mortgage records;92

searching property records;93 contacting the county recorder’s of-fice;94 reviewing the records of the county assessor;95 searching realproperty tax records;96 reviewing tax lien records;97 contacting the80 See, e.g., Duarte, 2008 WL 683427 * 2–3 (citing Watts v. Crawford, 896 P.2d 807) (quotedwith approval in MATSCO, 597 F. Supp. 2d at 163); Posey v. Searcy, 2008 WL 5382692 * 3;Prudential Ins. Co., 2008 WL 1925293 * 3; US Bank, NA, 2005 WL 2709295 * 1; Penn v.Raynor, 1989 WL 126282 * 2–3; Cooper, 489 P.2d at 1266 (quoted with approval inMATSCO, 597 F. Supp. 2d at 163).81 See, e.g., Floyd, 704 So. 2d at 1112; Prudential Ins. Co., 2008 WL 1925293 * 3.82 See, e.g., Sananikone, 2009 WL 796544 * 3 (citing Vorburg, 117 P.2d at 876); PrudentialIns. Co., 2008 WL 1925293 * 3 n.4.83 See, e.g., Hobe Sound Indus. Park, 594 So. 2d 334; Sananikone, 2009 WL 796544 * 1; USBank, NA, 2005 WL 2709295 * 1.84 See, e.g., Floyd, 704 So. 2d at 1112.85 See, e.g., MATSCO, 597 F. Supp. 2d at 162; Booth v. Martinez, 2007 WL 2086659 * 1.86 See, e.g., Family Tree Farms, LLC v. Alfa Quality Produce, Inc., 2009 WL 565568 * 2 (E.D.Cal. 2009).87 See, e.g., MATSCO, 597 F. Supp. 2d at 162; Duarte, 2008 WL 683427 * 4 (quoted withapproval in MATSCO, 597 F. Supp. 2d at 163); Gaeth v. Deacon, 964 A.2d at 623–24, 630(quoted with approval in MATSCO, 597 F. Supp. 2d at 160–62).88 See, e.g., Thrivent Financial, 2008 WL 5412095 * 1–2.89 See, e.g., Redfield Investments, 990 So. 2d at 1138–39; MATSCO, 597 F. Supp. 2d at 162.90 See, e.g., Demars, 625 So. 2d at 1221.91 See, e.g., Godsell, 923 So. 2d at 1212; Thrivent Financial, 2008 WL 5412095 * 2.92 See, e.g., Godsell, 923 So. 2d at 1212; Shepheard, 922 So. 2d at 344; Demars, 625 So. 2dat 1221.93 See, e.g., Redfield Investments, 990 So. 2d at 1137; Demars, 625 So. 2d at 1221; ThriventFinancial, 2008 WL 5412095 * 3; US Bank, NA, 2005 WL 2709295 * 1; Penn v. Raynor, 1989WL 126282 * 2 (citing Deer Park Lumber, Inc. v. Major, 559 A.2d 941 (Pa. Super. 1989));Empire of America, 1986 WL 3034 * 1 (citing Bell Federal Sav. & Loan, 376 N.E.2d 1029).94 See, e.g., Redfield Investments, 990 So. 2d at 1138.95 See, e.g., Penn v. Raynor, 1989 WL 126282 * 2 (citing Deer Park Lumber, 559 A.2d 941);Cooper, 489 P.2d at 1266 (quoted with approval in MATSCO, 597 F. Supp. 2d at 163).96 See, e.g., Gans, 593 So. 2d at 550–51.97 See, e.g., US Bank, NA, 2005 WL 2709295 * 1.


county tax collector’s research department;98 reviewing tax records ingeneral;99 searching local tax records;100 reviewing “taxpayer’slists”;101 database research in general;102 inspection of other avail-able public records;103 using internet searches/search engines in gen-eral;104 searching westlaw.com public record databases;105 searchingaccurint.com (a Lexis-Nexis-run web service providing records forsearches on individuals);106 searching Peoplefinders;107 conducting asearch using google.com;108 conducting a phone number search onmsn.com;109 searching autotrackxp.com (a professional investigativesearch engine operated by ChoicePoint);110 placing telephone calls;111

using regular mail;112 using registered or certified mail;113 sending a

98 See, e.g., Redfield Investments, 990 So. 2d at 1138.99 See, e.g., Sananikone, 2009 WL 796544 * 3 (citing Donel, 150 Cal. Rptr. 855); PrudentialIns. Co., 2008 WL 1925293 * 3; Posey v. Searcy, 2008 WL 5382692 * 3.100 See, e.g., Levin v. Richter, 1991 WL 13991 * 1; Penn v. Raynor, 1989 WL 126282 * 2–3.101 See, e.g., Penn v. Raynor, 1989 WL 126282 * 2 (citing Deer Park Lumber, 559 A.2d 941).102 See, e.g., Prudential Ins. Co., 2008 WL 1925293 * 3.103 See, e.g., Sananikone, 2009 WL 796544 * 4.104 See, e.g., Godsell, 923 So.2d at 1211; Dor Cha, 876 So. 2d at 679; Prudential Ins. Co., 2008WL 1925293 * 3; Duarte, 2008 WL 683427 * 2–4 (quoted with approval in MATSCO, 597 F.Supp. 2d at 163); Thrivent Financial, 2008 WL 5412095 * 1–2.105 See, e.g., Sananikone, 2009 WL 796544 * 1, 3.106 See, e.g., Bedgood, 2009 WL 1664131 * 1.107 See, e.g., Bedgood, 2009 WL 1664131 * 1.108 See, e.g., Sananikone, 2009 WL 796544 * 1, 3.109 See, e.g., Gaeth v. Deacon, 964 A.2d at 623 (quoted with approval in MATSCO, 597 F.Supp. 2d at 160–62).110 See, e.g., Gaeth v. Deacon, 964 A.2d at 623 (quoted with approval in MATSCO, 597 F.Supp. 2d at 160–62).111 See, e.g., Levenson v. McCarty, 877 So. 2d at 819–20; Gans, 593 So. 2d at 551; Bedgood,2009 WL 1664131 * 1; Duarte, 2008 WL 683427 * 4 (quoted with approval in MATSCO, 597F. Supp. 2d at 163).112 See, e.g., Shepheard, 922 So. 2d at 342; Gans, 593 So. 2d at 550–52; MATSCO, 597 F.Supp. 2d at 162; Duarte, 2008 WL 683427 * 2–4 (quoted with approval in MATSCO, 597 F.Supp. 2d at 163); Dolezal, 2008 WL 5215335 * 2; Posey v. Searcy, 2008 WL 5382692 * 2–4;see also Jones v. Flowers, 547 U.S. at 222 (explaining that “[c]ertified mail makes actualnotice more likely only if someone is there to sign for the letter or tell the mail carrier thatthe address is incorrect. Regular mail can be left until the person returns home, and mightincrease the chances of actual notice.”).113 See, e.g., Southeast and Associates, Inc., 704 So. 2d at 695, 697; Gans, 593 So. 2d at550–52; Bedgood, 2009 WL 1664131 * 1, 3; Dolezal, 2008 WL 5215335 *2; Furin, 2008 WL5068955 * 1; Posey v. Searcy, 2008 WL 5382692 * 2–4; Penn v. Raynor, 1989 WL 126282 *1, 3; see also Jones v. Flowers, 547 U.S. at 222 (discussing advantages of using regular U.S.mail vs. certified mail).


package via UPS;114 and using e-mail to contact the defendant.115

At the hearing on the pending motions, the Government rhetori-cally asked what more it could have been expected to do to locate andserve the Defendants, citing Grammer v. Grammer for the propositionthat “[e]xtraordinary steps to ascertain the whereabouts of [a] partyare not required.” See Grammer v. Grammer, 80 So.2d 457, 461 (Fla.1955); Audio Recording of Hearing at 04:07:50–04:07:58; see also id.at 00:26:37–00:26:43, 03:56:41–03:56:54, 03:58:11–03:58:31,03:59:00–03:59:05, 03:59:45–03:59:57, 04:05:30–04:07:05,04:12:41–04:12:58, 04:18:58-04:19:05. As the cases cited above amplydemonstrate, there was much that was not “extraordinary” that theGovernment could — and should — have done, in furtherance of the“diligent search and inquiry” that it was obligated to undertake.116

To be sure, the Government was by no means required to pursue allof the potential sources and courses of action enumerated above. But,clearly, the Government’s obligation of “diligent search and inquiry”required it to do something more than it did. See, e.g., Prudential Ins.Co., 2008 WL 1925293 * 3 (listing various potential sources of infor-mation that plaintiff could have explored, and noting that “[w]hilethis is not an exhaustive list of the steps the plaintiff might havetaken to determine the defendant’s current address, nor would thecompletion of each necessarily equate to diligence, these avenues ofinquiry may reveal his whereabouts or identify individuals who mayknow his whereabouts”); Cooper v. Commonwealth Title of Arizona,489 P.2d 1262, 1266 (Ariz. Ct. App. 1971) (identifying range of poten-tial sources of information that plaintiff could have considered, andobserving that “[w]hile it may not be necessary to indicate in theaffidavit that all of these sources were checked,” the actions that114 See, e.g., Furin, 2008 WL 5068955 * 1.115 See, e.g., Sananikone, 2009 WL 796544 * 1; Modan v. Modan, 742 A.2d 611, 613–14 (N.J.Super. Ct. App. Div. 2000) (cited with approval in Prudential Ins. Co., 2008 WL 1925293 *2); see also Rio Properties, Inc., 284 F.3d at 1017–19 (foreign defendant).116 The sole case that the Government cited in its Motion for Service by Publication isreadily distinguished. See Motion for Service by Publication (citing United States v. JRGMedical Equipment, Inc., No. 07–203050 (S.D. Fla. filed Feb. 2, 2007) (docket sheet)). Inthat case, where (significantly) the defendant was a corporation, the efforts made by theGovernment before resorting to service by publication were significantly more extensive. Inaddition to obtaining the current drivers’ license address for the corporate representative,the Government made repeated attempts at personal service at that address (until theprocess servers were told by someone that the corporate representative had never lived atthat address), attempted to contact the corporate representative through his wife, con-firmed that the address in question was the current mailing address for the corporaterepresentative, attempted to locate the corporate representative at a different businessaddress, and searched a number of databases in an attempt to identify additional addresseswhere the corporate representative might be located. See, e.g., Audio Recording of Hearingat 04:35:21–04:39:17.


plaintiff had already taken “[fell] far short of probative facts whichsupport a finding of due diligence”).

Perhaps the single most clear-cut illustration of the Government’sfailure to conduct a “diligent search and inquiry” is its failure to askRonald Rodrigue about the whereabouts of his son, Leroy Rodrigue.As emphasized in Grammer v. Grammer (the Florida Supreme Courtcase that the Government itself cited in the course of the hearing onthe motions at issue here), “the effort [to ascertain the whereabouts ofa defendant] should usually extend to inquiry of persons likely orpresumed to know the facts sought.” Grammer v. Grammer, 80 So. 2dat 460–61 (quoting McDaniel v. McElvy, 108 So. at 831–32);117 seealso nn.58–59, supra (citing cases addressing efforts to locate andserve defendants through contacts with co-defendants and relatives,respectively). That failure alone would doom the Government’s Mo-tion for Service by Publication. See, e.g., Redfield Investments, 990 So.2d at 1139 (reversing trial court’s denial of motion to quash service ofprocess by publication, based on “the apparent failure of [the plaintiff]to inquire of the most likely source of potential information concern-ing the whereabouts of [the defendant]”); Shepheard, 922 So. 2d at344–45 (reversing trial court’s denial of plaintiff wife’s motion to setaside default judgment based on service of process by publication,explaining that “[b]ecause [the plaintiff] declined to ask for [thedefendant’s] address from the party most likely to possess the infor-mation, its conduct led directly to its alleged unawareness of [thedefendant’s] address. . . . As such, [the plaintiff] did not comply withthe statutory requirements for constructive service because it did notconduct a diligent search.”) (citation omitted).

117 The obligation to make “inquiry of persons likely or presumed to know the facts sought”is a recurring theme, well-established in the Florida caselaw on service of process bypublication. See, e.g., Redfield Investments, 990 So. 2d at 1139 (stating that “effort shouldusually extend to inquiry of persons likely or presumed to know the facts sought”) (empha-sis omitted) (quoting Levenson v. McCarty, 877 So.2d at 820); Godsell, 923 So. 2d at 1215(explaining that “‘[i]t is basic that to constitute diligent search and inquiry to discover thewhereabouts of a party, that inquiry should be made of persons likely or presumed to knowsuch whereabouts’”) (quotation omitted); Shepheard, 922 So. 2d at 344 (noting that “[a]diligent search for a defendant’s whereabouts requires inquiry of persons likely or pre-sumed to know the defendant’s location”); Dor Cha, 876 So. 2d at 680 (identifying as “thegeneral rule for a diligent search”: “‘It is basic that to constitute diligent search and inquiryto discover the whereabouts of a party, that inquiry should be made of persons likely orpresumed to know such whereabouts.’”) (quotation omitted); Mayo, 344 So. 2d at 936(observing that “the test of whether the party who seeks to employ constructive service hasmade the requisite diligent search and inquiry to whether ‘the complaint reasonablyemployed knowledge at his command in making the appropriate effort’ to acquire theinformation necessary to comply with the statute. It is basic that to constitute diligentsearch and inquiry to discover the whereabouts of a party, that inquiry should be made ofpersons likely or presumed to know such whereabouts.”) (quotation omitted).


In sum, the Government here has failed to demonstrate that itconducted the “diligent search and inquiry” required as a predicatefor service of process by publication.118 Thus, even if the Govern-ment’s Motion for Service by Publication were not moot and even ifthe Government’s papers in support of that motion were not legallyinsufficient on their face, the Government’s Motion for Service byPublication nevertheless would have to be denied.

118 Moreover, the Government here has not even attempted to show that its proposal topublish notice in the Daily Business Review is reasonably calculated to give the remainingunserved Defendant, Leroy Rodrigue, notice of the pendency of this action. See Pl.’s Motionfor Service by Publication & attached draft Notice of Action (apparently patterned on aNotice used by the U.S. Attorney’s Office in Miami in another case, and erroneously statingthat the instant action is for “statutory damages and civil penalties resulting from thesubmission of false claims to the Medicare program, in violation of the federal False ClaimsAct”); Audio Recording of Hearing at 04:54:46–04:54:56 (Government conceding errors indraft Notice of Action); see also Gaeth v. Deacon, 964 A.2d at 627 (explaining that “[t]heultimate question when due process and the adequacy of notice of suit are at issue iswhether the notice or attempted notice was reasonably calculated to give a defendant noticeof the pendency of the action, not whether the technical requirements of a rule governingservice of process were met”) (citing Schroeder v. City of New York, 371 U.S. at 212–13).

The Government has proffered no information whatsoever on relevant matters such as thenature, readership, and circulation of the Daily Business Review, or its geographic distri-bution vis-a-vis the residence of Leroy Rodrigue. Compare, e.g., Family Tree Farms, 2009WL 565568 * 3 (explaining that, in support of application for service by publication, plaintiffsubmitted declaration attesting, inter alia, that the two newspapers at issue were news-papers of general circulation, and that “publication of the summons in the newspapers waslikely to give actual notice to Defendants because the Defendants’ business addresses hadbeen within the city and county in which the newspapers were published”); Zaritsky, 2008WL 2705488 * 3 (denying motion for leave to serve by publication, and directing that anyrenewed motion detail, inter alia, “the newspaper(s) in which plaintiff plans to publishnotice” and “why plaintiff reasonably believes that these particular newspaper(s) willprovide effective notice”); Furin, 2008 WL 5068955 * 2 (granting motion to serve bypublication where plaintiff ’s affidavit established, inter alia, that The Washington Lawyerand Washington Post are “widely circulated publications in the Washington, D.C. area” andwould be appropriate vehicles for publication of notice).

This failure on the part of the Government would independently warrant denial of itsMotion for Service by Publication. See, e.g., MATSCO, 597 F. Supp. 2d at 162 (denyingmotion for service by publication, ruling, inter alia, that “[p]ublication in a newspaper inPortland, Maine, where the defendant apparently no longer resides, cannot be said to bereasonably calculated to give him actual notice”); Thrivent Financial, 2008 WL 5412095 *3 (setting aside default judgment based on plaintiff ’s service by publication, stating thatplaintiff “should have published notification in the newspapers of . . . the counties thatborder [the county of defendant’s last known address],” rather than in newspapers incounties “not . . . the closest geographically” to the county of defendant’s last knownresidence); Prudential Ins. Co., 2008 WL 1925293 * 4 (denying motion for service bypublication, concluding, inter alia, that “service of the defendant [whose last known addresswas in Alabama] by publication in a New Jersey newspaper would not comport with dueprocess”); Gaeth v. Deacon, 964 A.2d at 627 (holding that plaintiff ’s service by publicationin Lincoln County News did not satisfy requirements of due process, where that weeklynewspaper in Maine “would be highly unlikely to give [the defendant, a Massachusettsresident] actual notice of the lawsuit”).


C. The Dismissal of This Action

USCIT Rule 4(l) directs that an action must be dismissed, withoutprejudice, where the plaintiff fails to effect service of process withinthe 120-day period, absent an extension of time. Accordingly, thedenial of the Government’s Motion for an Extension of Time (seesection II.A, above) leads inexorably to the dismissal of this actionwithout prejudice. As other courts have noted, however, “withoutprejudice” does not necessarily mean “without consequence.”

Where — as here — the statute of limitations has already run, suchthat any refiled action would be time-barred, the dismissal is (ineffect) one with prejudice. See, e.g., Tuke v. United States, 76 F.3d at156 (Easterbrook, J.) (explaining that “[d]ismissal was without preju-dice, but ‘without prejudice’ does not mean ‘without consequence.’ Ifthe case is dismissed and filed anew, the fresh suit must satisfy thestatute of limitations. . . . A new suit would be untimely, so thedismissal is final . . . .”) (internal quotations and citation omitted);Mendez v. Elliott, 45 F.3d 75, 78 (4th Cir. 1995) (observing that,although Rule 4’s provision for dismissal “without prejudice” provi-sion “permits a plaintiff to refile the complaint as if it had never beenfiled,” the rule does not give a plaintiff “a right to refile without theconsequence of time defenses, such as the statute of limitations”).119

IV.Conclusion

The U.S. Court of Appeals for the Seventh Circuit has noted that(like the rules of this Court) the Federal Rules of Civil Procedure, ineffect, “give plaintiffs who sue under federal law the full period oflimitations, plus 120 days, in which to achieve service.” Tuke v.United States, 76 F.3d at 157 (Easterbrook, J.) (citation omitted).“Four months should be ample” — at least in the vast majority ofcases. Id. ; accord, Cox v. Sandia Corp., 941 F.2d at 1126 (emphasizingthat “Rule 4 provides ample time to effect service”).

“The requirements of the rules,” including those governing serviceof process, “apply equally to the government and to private litigants.”United States v. Britt, 170 F.R.D. 8, 9–10 (D. Md. 1996). For all thereasons set forth above, Plaintiff ’s motions to extend the time forservice of process and for leave to serve by publication must bedenied, and this action is hereby dismissed. See USCIT R. 4(1).

119 See also United States v. World Commodities, 32 CIT at _____, 2008 WL 748677 * 4(noting that “[a]lthough the court’s dismissal is technically without prejudice to refiling, theexpiration of the statute of limitations essentially ends the action as to [the defendant]because [plaintiff] Customs appears to be time-barred by the statute of limitations fromrefiling the claim”).


So ordered.Dated: October 1, 2009

New York, New York/s/ Delissa A. Ridgway

DELISSA A. RIDGWAY

JUDGE

◆

Slip Op. 09–109

FUNAI ELECTRIC CO., LTD. AND FUNAI CORPORATION, INC., PLAINTIFFS, V.UNITED STATES AND UNITED STATES BUREAU OF CUSTOMS AND BORDER

PROTECTION, DEFENDANTS.

Court No. 09–00374

[Defendants’ motion to dismiss for lack of subject-matter jurisdiction over thisaction for relief from U.S. Customs and Border Protection ruling of admissibility ofDTVs alleged to be within purview of an exclusion order of the U.S. International TradeCommission granted.]

Dated: October 6, 2009

Morrison & Foerster LLP (Karl J. Kramer, G. Brian Busey and Teresa M. Summers)and Grunfeld, Desiderio, Lebowitz, Silverman and Klestadt LLP (Harold M. Grunfeld,Robert B. Silverman and Frances P. Hadfield) for the plaintiffs.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E.White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S.Department of Justice (Antonia R. Soares); and Barbara S. Williams, Attorney inCharge, International Trade Field Office, Commercial Litigation Branch, Civil Divi-sion, U.S. Department of Justice (Amy M. Rubin); and Office of Assistant Chief Coun-sel, International Trade Litigation, U.S. Customs and Border Protection (Michael W.Heydrich), of counsel, for the defendants.

Jones Day (Eric S. Namrow, Thomas V. Heyman and Cecilia R. Dickson) for pro-posed intervenor-defendants Vizio, Inc., AmTran Technology Co., Ltd. and AmTranLogistics, Inc.

O’Melveny & Myers LLP (Mark A. Samuels and Jonathan D. Hacker) for proposedintervenor-defendants TPV Technology, Ltd., TPV International (USA), Inc., Top Vic-tory Electronics (Taiwan) Co., Ltd. and Envision Peripherals, Inc.

Bingham McCutchen LLP (James Hamilton, Robert C. Bertin, Warren A. Fitch andDiane C. Hertz) for proposed intervenor-defendant Tatung Co.

OPINION & ORDER

AQUILINO, Senior Judge:

I

Immediately upon the filing of plaintiffs’ summons and complaintand applications for a temporary restraining order and preliminaryinjunction, the defendants and then would-be intervenor-defendants


contested the Court of International Trade’s subject-matter jurisdic-tion, supported by the filing of formal motions to dismiss this actionfor lack thereof. Hearings have been held, and the record developedand papers presented on all sides reveal the following:

II

Funai Corporation, Inc. is a wholly-owned U.S. subsidiary of FunaiElectric Co., Ltd., a Japanese corporation that manufactures andmarkets consumer electronic products, including digital televisions(“DTVs”) under such trade names as Sylvania, Emerson, Magnavox,Philips, and Symphonic. Effective September 30, 2007, all rights inU.S. Patent No. 5,329,369 (July 12, 1994), entitled “Asymmetric Pic-ture Conversion”, and U.S. Patent No. 6,115,074 (Sept. 5, 2000) (“Sys-tem for Forming and Processing Program Map Information Suitablefor Terrestrial, Cable and Satellite Broadcast”) were assigned toFunai Electric Co., which then filed a complaint with the U.S. Inter-national Trade Commission (“ITC”), alleging violations of those pat-ents within the meaning of section 337 of the Tariff Act of 1930, asamended, 19 U.S.C. §1337. The Commission responded by publishinga formal notice of investigation, No. 337–TA–617, sub nom. In theMatter of Certain Digital Televisions and Certain Products Contain-ing Same and Methods of Using Same, 72 Fed. Reg. 64,240,–241 (Nov.15, 2007), as to

whether there is a violation of subsection (a)(1)(B) of section 337in the importation into the United States, the sale for importa-tion, or the sale within the United States after importation ofcertain digital televisions and certain products containing sameand methods of using same by reason of infringement of one ormore of claims 1, 4, 5, 8, 9, and 23 of U.S. Patent No. 6,115,074and claims 1–3, 5, 7, 10-13, 15, and 19–29 of U.S. PatentNo.5,329,369, and whether an industry in the United Statesexists as required by subsection (a)(2) of section 337[.]

Named as respondents were Vizio, Inc., AmTran Technology Co., Ltd.,Polaroid Corporation, Petters Group Worldwide, LLC, Syntax-Brillian Corporation, Taiwan Kolin Co., Ltd., Proview InternationalHoldings, Ltd., Proview Technology (Shenzhen) Co., Ltd., ProviewTechnology, Ltd., TPV Technology, Ltd., TPV International (USA),Inc., Top Victory Electronics (Taiwan) Co., Ltd., Envision Peripherals,Inc., and International Reliance Corp., which enterprises paragraph5 of plaintiffs’ instant complaint groups as follows: (1) Vizio andAmTran; (2) TPV Technology, TPV International, Top Victory, and


Envision; (3) the Proview firms; (4) Polaroid and Petters; (5) Syntax-Brillian and Taiwan Kolin; and (6) International Reliance1.

Proceedings before an administrative law judge of the ITC resultedin publication of his Initial Determination that

a violation of section 337 . . . has occurred in the importation intothe United States, the sale for importation, or the sale withinthe United States after importation of certain digital televisionsand certain products containing same and methods of usingsame by reason of infringement of claims 1, 5, and 23 of . . .Patent No. 6,115,074. It is further found that no violation ofsection 337 has occurred in connection with claim 1, 3, 7, 19, or21 of . . . Patent No. 5,329,369.

Plaintiffs’ Complaint, Exhibit 1, first page. This was followed by thejudge’s Recommended Determination on Remedy and Bonding [id.,Exhibit 2] that suggested, among other things, that a limited exclu-sion order issue that covers each asserted patent found by the Com-mission to be infringed and that cease-and-desist orders issue as tothe domestic respondents. Plaintiffs’ complaint proceeds to aver:

9. On April 10, 2009, the Commission . . . affirmed the ALJ’sdetermination with respect to the three claims found to be in-fringed.

10 Consistent with the ALJ’s definition of the universe ofaccused products, the Commission determined that the DTVs atissue include all digital televisions made or imported by theRespondents that “process information received in the ATSC-compliant broadcast signal.” See . . . Comm’n Op. at 4 . . .(Exhibit 3).

11. The Commission held that all of the Respondents accusedproducts infringe all asserted claims of the ‘074 Patent.

12. On April 10, 2009, the Commission . . . issued a LimitedExclusion Order (the “Exclusion Order”), directing Customs toexclude all products that infringe the ‘074 Patent from entryinto the United States, as well as Cease and Desist Orders,which are enforced by the Commission rather than Customs andare not at issue here. See . . . Notice of Commission FinalDetermination . . . (Exhibit 4).

1 Footnote 1 to plaintiffs’ paragraph 5 reports ITC termination of its investigation ofInternational Reliance Corp.and also with regard to Polaroid and Petters, although “Po-laroid — branded televisions manufactured and sold by Proview are covered bythe remedialorders issued in this Investigation.”


13. The Commission’s Exclusion Order states in relevant part:Digital televisions and products containing same (known as“combination” or “combo” units) that are covered by one or moreof claims 1,5, and 23 of the ‘074 patent and that aremanufactured abroad by or on behalf of[,] or are[] imported by oron behalf of[,] Vizio, AmTran, SBC, Taiwan Kolin, ProviewInternational, Proview Shenzhen, Proview Technology, TPVTechnology, TPV USA, Top Victory[,] and Envision or any of theiraffiliated companies, parents, subsidiaries, or other relatedbusiness entities, or their successors or assigns, are excludedfrom entry for consumption into the United States, entry forconsumption from a foreign-trade zone, or withdrawal from awarehouse for consumption, for the remaining term of thepatent, except under license of the patent owner or as providedby law.

14. The meaning of the phrase “covered by one or more ofclaims 1, 5, and 23 of the ‘074 patent” is clearly set forth in theCommission Opinion and the ALJ’s Initial Determination,which the Commission adopted insignificant part.

15. Consistent with the ALJ’s definition of the universe ofaccused products, the Commission determined that the DTVs atissue include all digital televisions made or imported by theRespondents that “process information received in the ATSC-compliant broadcast signal.” See . . . Comm’n Op. at 4 . . .(Exhibit 3).

16. By its plain terms, and also as intended upon the findingsand analysis of the Commission, the Exclusion Order is notlimited to any particular models of Respondents’ DTVs.

17. The Exclusion Order covers all of Respondents’ DTVs thatconform to the Advanced Television Systems Committee(“ATSC”) Standard, mandated by the Federal CommunicationsCommission, to which the ‘074 Patent pertains. Because alldigital televisions are required to process ATSC-compliant sig-nals in the U.S., the products covered by the Commission’sExclusion Order include all digital televisions made or importedby the Respondents. In issuing its broadly-worded ExclusionOrder, the Commission determined that the ‘074 Patent hadbeen designated as essential to practice the ATSC standard,with which all televisions sold in the United States must becompliant by law. See . . . Comm’n Op. at 8–9. . . . The Commis-sion also found that the Respondents “market their DTVs for thespecific purpose of receiving ATSC compliant signals.” Id.


18. Respondents raised the issue of whether they could importcertain redesigned DTVs during the Investigation, but the Com-mission did not grant such permission. The Commission adoptedthe ALJ’s findings that both their so-called “work around” prod-ucts as well as their older “legacy” products infringe the assertedclaims of the ‘074 patent. See . . . Comm’n Op. at 8.. . . Thus, theCommission issued its broadly-worded Exclusion Order that“all” of Respondents’ products “that infringe” must be excluded.

Underscoring in original.To read further the complaint, paragraph 25 alleges that Vizio, Inc.

and its manufacturer AmTran, as well as TPV and its affiliate Envi-sion, “and perhaps others” requested ex parte a ruling from U.S.Customs and Border Protection (“CBP”) pursuant to 19 C.F.R. §177that current models of DTV’s, which incorporate certain ATSC-compliant chipsets, are not covered by the ITC’s exclusion order.Pursuant thereto, the CBP Intellectual Property Rights & RestrictedMerchandise Branch issued HQ H067500 (Aug. 5, 2009), holding that

three semiconductor chip samples submitted by or on behalf ofAmtran Logistics, Inc., TPV International (USA), Inc., and En-vision Peripherals, Inc., are not subject to Exclusion Order337–TA–617. Therefore, DTVs that contain the . . . three semi-conductor chips identified as Model BCM35243 (Broadcom),Model MT5382PTR (MediaTek), Model ZR39775HGCF-B(Zoran), and all functional equivalents of the aforementionedmodels, maybe entered for consumption into the United States.

Plaintiffs’ Complaint, Exhibit 8, Part C, p. 16. Whereupon the plain-tiffs plead that questions regarding the scope and coverage of an ITCexclusion order are the sole authority of the Commission2, that itretains the authority to make a dispositive ruling on infringement3,and that CBP has no authority to change or fail to enforce a duly-issued ITC order of exclusion4. Hence, CBP’s unilateral interpreta-tion of the scope of that order is quo warrento and ultra vires5, and

[p]ublicly available information indicates that, since the Com-mission’s Exclusion Order became fully enforceable on July 29,2009, Respondents have continued to import the redesignedDTVs and sell them to customers. . . .

2 Complaint, para. 37.3 Id., para. 41.4 Id. , para. 42 (emphasis in original).5 Id., para. 46.


45. If Customs permits Amtran, TPV and Envision to importthe redesigned product, Funai will be irreparably harmed in amanner for which Funai will have no redress in a court of law.6

III

Before this particular court of law, the plaintiffs pray for judgment:

A. . . . declar[ing] that Customs’ Ruling HQ H067500. . . thatthe alleged redesigned digital television products of AmtranLogistics, . . . TPV International (USA), Inc. . . . and EnvisionPeripherals, Inc. . . . that contain the . . . three semiconductorchips identified as Model BCM35243 (Broadcom), ModelMT5382PTR (MediaTek), Model ZR39775HGCF-B (Zoran), andall functional equivalents of the aforementioned models, maybeentered for consumption into the United States . . .is null andvoid and that the . . . Defendants[], together with their officers,agents and employees, . . . be . . . enjoined from enforcing [the]. . . Ruling . . .;

B. [] declar[ing] that Customs’ enforcement position as to theredesigned DTVs is arbitrary, capricious and an abuse discre-tion;

C. . . . setting aside Customs’ enforcement position as to theredesigned DTVs;

D. [] order[ing] that Customs communicate with the Commis-sion as to the proper interpretation and scope of the exclusionorder;

E. [] order[ing] that Customs [] exclude (under 19 U.S.C. §1337(d)(1)) or seize where appropriate (under 19 U.S.C. §1337(i)) the redesigned DTVs and not allow admission of rede-signed DTVs unless a determination of non-infringement ismade by the Commission;

F. [] declar[ing] that the redesigned DTVs are subject to theCommission Exclusion Order unless or until a determination ofnon-infringement is made by the Commission[;]

G. [] order[ing] that Customs seek redelivery immediately ofall unliquidated entries of redesigned DTVs that have beenadmitted into the customs territory of the United States sinceJuly 29, 2009;

6 Id., paras. 44 and 45 and 73 and 74.


H. [] order[ing] that Customs issue explicit instructions to theports, to Amtran, TPV and Envision stating that any redesignedDTVs are not entitled to admission into the United States unlessa determination of non-infringement is made by the Commis-sion; [and]

I. If this Court permits Customs to use Rule 177 to determinewhether redesigned DTVs are within the scope of the ExclusionOrder, [] order[ing] that Customs provide Funai fair access toinformation exchanged and an opportunity to comment and beheard[.] . . .7

A

The plaintiffs posit jurisdiction for such relief under subsections (h)and (i) of 28 U.S.C. §1581. They provide in pertinent part:

(h) The Court of International Trade shall have exclusivejurisdiction of any civil action commenced to review, prior to theimportation of the goods involved, a ruling issued by the Secre-tary of the Treasury, or a refusal to issue or change such a ruling,relating to classification, valuation, rate of duty, marking, re-stricted merchandise, entry requirements, drawbacks, vesselrepairs, or similar matters, but only if the party commencing thecivil action demonstrates to the court that he would be irrepa-rably harmed unless given an opportunity to obtain judicialreview prior to suchimportation.

(i) In addition to the jurisdiction conferred upon the Court ofInternational Trade by subsection . . . (h) of this section . . ., theCourt of International Trade shall have exclusive jurisdiction ofany civil action commenced against the United States, its agen-cies, or its officers, that arises out of any law of the UnitedStates providing for —

(1) revenue from imports or tonnage;(2) tariffs, duties, fees, or other taxes on the importation of

merchandise for reasons other than the raising of revenue;(3) embargoes or other quantitative restrictions on the

importation of merchandise for reasons other than the protectionof the public health or safety; or

(4) administration and enforcement with respect to thematters referred to in paragraphs (1)–(3) of this subsection andsubsection . . . (h) of this section. . . .

These provisions emanate from the Customs Courts Act of 1980,Pub. L. No. 96–417, 94 Stat. 1727, and, as indicated at the hearing on

7 Id., pp. 17–18.


September 3, 2009, the undersigned has not doubted the intent of itsframers that an action like this be subject to the jurisdiction of theCourt of International Trade. See generally H.R. Rep. No. 96–1235(Aug. 20, 1980). Indeed, when another holder of a U.S. patent, whichhad sought its enforcement via proceedings pursuant to 19 U.S.C.§1337 before the ITC, came to believe that the resultant exclusionorder was not being properly enforced by CBP and commenced anaction, CIT No. 05–00487, preliminary injunctive relief was grantedtherein based, in part, upon reading of Vivitar Corp. v. United States,761 F.2d 1552, 1557–60 (Fed.Cir. 1985), cert. denied, 474 U.S. 1055(1986), and U.S. Ass’n of Importers of Textiles & Apparel v. UnitedStates, 413 F.3d 1344, 1348 (Fed.Cir. 2005). See Eaton Corp. v. UnitedStates, 29 CIT 1149, 395 F.Supp.2d 1314 (2005).

But subsequent reading does not lead this court to conclude thatthe current state of the law supports plaintiffs’ position herein. InEaton Corp., the court opined that it did not have subject-matterjurisdiction under section 1581(h), supra. See 29 CIT at 1161, 395F.Supp.2d at 1324–25. Nor has a review of cases properly broughtthereunder revealed a party plaintiff in Funai’s current circum-stance. See, e.g., Nat’l Juice Prods. Ass’n v. United States, 10 CIT 48,628 F.Supp. 978 (1986); American Frozen Food Inst., Inc. v. UnitedStates, 18 CIT 565, 855 F.Supp. 388 (1994); Ross Cosmetics Distrib.Ctrs., Inc. v. United States, 18 CIT 979 (1994); CPC Int’l v. UnitedStates, 19 CIT 978, 896 F.Supp. 1240 (1995), rev’d on other groundssub nom. Bestfoods v. United States, 260 F.3d 1320 (Fed.Cir. 2001);Holford USA Ltd. v. United States, 19 CIT 1486, 912 F.Supp. 555(1995); Heartland By-Prods., Inc. v. United States, 23 CIT 754, 74F.Supp.2d 1324 (1999); Boltex Mfg. Co. v. United States, 24 CIT 972,140 F.Supp.2d 1339 (2000); Pacific Cigar, Co. v. United States, 28 CIT1931, 350 F.Supp.2d 1248 (2004).

Moreover, plaintiffs’ position herein does not entail any of the ele-ments set forth in subsection 1581(i)(1) or (i)(2), supra. As for subsec-tion (i)(3), neither an embargo nor quantitative restriction is at bar.See, e.g., K Mart Corp. v. Cartier, Inc., 485 U.S. 176 (1988). Whichleaves subsection (i)(4), but that provision conjoins subsections (1)–(3)with subsection 1581(h), each of which is not apposite in this matter.

The plaintiffs rely on Conoco, Inc., v. U.S. Foreign-Trade Zones Bd.,18 F.3d 1581, 1588 (Fed.Cir. 1994), to the effect that 28 U.S.C.§1581(i) gives the Court of International Trade “broad residual au-thority over civil actions arising out of federal statutes governingimport transactions”. That it does. The court of appeals has subse-quently reaffirmed, however, that the


Court of International Trade, like all federal courts, is a court oflimited jurisdiction. Norsk Hydro Can., Inc. v. United States, 472F.3d 1347, 1355 (Fed.Cir. 2006). It possesses only that powerauthorized by the Constitution and federal statutes, which is notto be expanded by judicial decree. Kokkonen v. Guardian LifeIns. Co. of Am., 511 U.S. 375, 377 . . . (1994). In Conoco, we didnot hold that the appellants were entitled to “non-statutory,judicially-granted” review. Instead, starting from the presump-tion that agency action is subject to judicial review, we analyzedvarious federal statutes in order to determine which statuteprovided jurisdiction over the appellants’ case and, thus, wherejurisdiction was proper (i.e., in the Court of International Tradeor in the appropriate district court). Conoco, 18 F.3d at1585–1590. Conoco provides no support for Sakar’s concept of“non-statutory, judicially-granted” review.

Sakar Int’l, Inc. v. United States, 516 F.3d 1340, 1349 (Fed.Cir. 2008).As was true when plaintiffs Conoco, Inc. and Citgo Petroleum Corp.appeared before the Court of International Trade, the “restrictivestatutory scheme of §1581(a)–(h) and its relationship to §1581(i)should be re-examined”8, but that process remains the province ofhigher authority.

IV

All that is clearly within the jurisdiction of this court nisi prius inview of the foregoing is to grant defendants’ motion to dismiss plain-tiffs’ complaint.9 Judgment will enter accordingly.

So ordered.Dated: October 6, 2009

New York, New York/s/ Thomas J. Aquilino, Jr.

SENIOR JUDGE

8 Conoco Inc. v. U.S. Foreign-Trade Zones Bd., 16 CIT 231,243, 790 F.Supp. 279, 289 (1992).9 The court did not grant a temporary restraining order as aresult of the hearing onSeptember 3, 2009. Given the required final disposition now, plaintiffs’ application for apreliminary injunction must be, and it hereby is, denied. Moreover, the pending motions ofVizio, Inc., AmTran Technology Co., Ltd., AmTran Logistics, Inc., TPV Technology, Ltd., TPVInternational (USA), Inc., Top Victory Electronics (Taiwan) Co., Ltd., Envision Peripherals,Inc., and Tatung Co. for leave to intervene as party defendants, as well as plaintiffs’ motionfor leave to file a sur-reply to some of them, can be, and each hereby is, dismissed.

Also, Defendant’s Motion to Strike Portions of Plaintiffs’ September 22, 2009 Filing can be,and it hereby is, dismissed.


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